thirty two thirty nine mccarthy the international boundary and water commission the removal of the general counsel of the i b e w c because of legal memos disclosing waste fraud abuse and illegal acts which were deemed not constructive and this case involves egregious government misconduct not only in the whistleblower retaliation itself but in the fabrication of evidence to defend mr mccarthy was attempting to address the structure and function of an agency which had twice been found by the state department sector general to be so mismanaged and dysfunctional that it was in danger of failing its mission entirely its mccarthys recommendations were concurred in several of them by the state department and other agencies and in fact the agency implemented the recommendations in the four memos that he was fired on are you are grateful that he was discharged because of his you arguing that the discharge was motivated by his internal memo he was discharged after his external disclosures and because of the external disclosures however the case was that we pointed out in our brief board case law the cases of a mousers and thompson pointing out that if an employee is making internal disclosures which his management fears may subsequently be made outside he has whistleblower protection even if he never makes an externally now in this case mr mccarthy did make them externally and we submit that he was fired eighth and the with the flow and so if he had already been destroyed you're suggesting that even under those circumstances he might be a whistle blower in caves and we are suggesting that but you need not reach that in this case because he was fired after his external disclosures did well make that argument below yes well we made it in our brief yes you made it in your brief here by did you make the argument well i believe below we made the argument that the disclosure that he was fired based on the content of his legal memos and that content was the same content that was later in his extra no disclosures and that cannot qualify as an independent no retaliate or a reason so there's no way here that the agency could possibly meet its burden of clear and convincing evidence that it fired mccarthy for a i'm not retaliate or a reason separate from the whistleblower disclosures because the reasons they fired him are inextricably intertwined with his whistleblowers disclosures regardless of whether they when the timing of things were i don't  because you think that i mean i'm not clear what you're saying i thought he started off by saying that there is he he is he could have been firing him because the anticipate the supervisor anticipated or thought right that they might well how does one prove that i mean who has the burden of proving that what and that we guard in terms of whether or not he i didn't think see that an element of this case that even if he had made a decision to fire him before hand it would be all right because he clearly just a year and that that or knew somehow that there was going to be a disclosure well as i said that that's not a crucial element of this because he was fired after his external disclosures but in these to me it's quite critical because i think a lot of what the board said and i think what the argument of the government is is that the agency did make a credible credibility determination that the supervisor had determined to fire him before the disclosure ok well so it's kind of that the variation right  well let me address that then the claim that mr root is a commissioner had decided to fire mccarthy prior to his xorn all disclosures first of all it depends on evidence some of which is fabricated and backdated that says that ms that is supposedly reflective mr ruef was thinking about firing him earlier however mr ruef himself testified that he decided to fire mccarthy the day before his disclosures which was after all of these documents they're relying on so the agency could not have been as the government says trying to put in motion his removal weight hadn't even been decided yet  another chapter on this is that the saloons approved mr mccarthy of leave for the first week in august he was fired on july thirty first to move this family from california where his wife would be leaving her job he wouldn't have done that if he had been planning on hiring the car since his when did the army when he him he improved that leave i don't know the exact date but sometime in july this mccarthy said you know i want to knew that mr mccarthy was moving his wife and his wife was leaving her job he never said you know don't bother we're going to be fired she and he in fact didn't lose his wife and she didn't write the significance of that might be very different if it occurred on the first of july suppose he made a decision on the twenty seventh the day before the extremal to floaters is not supported by any documentation or any other testimony that he told anybody that it's just something inside his head that you have to look at his credibility and his many some contradictions in his testimony that we've pointed out in our brief and the problem is we don't have the same opportunities and also to look at how the documents contradict what he testified to what what documents contradict that he made the decision on the twenty s document contradicts that he made the nine hundred twenty seven well the the evidence as a holes there's no particular support for the fact that he made that decision at that time the fact that the agency had to fabricate documents to show this prior intent i think is very strong evidence that there was not for example there's a document that the agency introduced to show the prior intent which is a memo supposedly  the twenty third dated the twenty third and the computer mehta data shows that in fact it was first created on august third after both the discord in the end of the day his testimony i'm with the agent credit it was that he made the decision on the twenty six that's right but what i'm saying is that they introduced evidence first of all they introduced evidence supposedly to show a prior intent which was even earlier than what he testified to so that doesn't make any sense and secondly the evidence was fraudulent it was created after the firing should be subject to advice and consent of the senate was wrong and that he had consulted people at the state department who told him it was wrong well under cross examination he was shown a document and he was forced to admit that the state department in fact agreed with mccarthy that he was subject to advice and consent of the senate and had so recommended in the inspector general rejected certain evidence and whitmore there was being excluded our consideration of it as the relevant that's that's very different than a situation in which they look at the evidence and and ways differently than you well that did happen here for example in their consideration of the third car factor of whether or not in whistleblowers were treated similarly they completely ignored extensive evidence that two other high level officials at the ivy w c mr graef in this forty gauged in conduct that was far worse than anything that mr mccarthy was accused of in terms of non collegial or divisive or  supportive and had no sanction whatsoever and the board simply just said third there are no compared or boys when we had introduced extensive evidence that there were and that that  that hard fact or life purpose has an analysis well i think that because in almost any whistleblower case the agency is probably going to say well we had already made up our minds before the disclosure just like the deciding official going to deny he did it because of retaliation that's one of the car factors are there so that you can go for further than just a bald claim by the agency which we've shown you know has a lot of countervailing evidence and ages in the record that he did decide before that you need to look at these other factors that give you a whole picture of the possible retaliatory motive in the credibility of those claims used to sign you into your  i'd like to say one more thing quickly and that is that the evidence jury in discovery abuses in this case alone require reversal and serious evasions of the agency for fabricating a back to the evidence now already mentioned that one mark are you are you saying that they did not argue below that that there was a fear that he was going to make disclosures and that he therefore falls into that case and that would make him a perceived w pacific some do ultimately find their way disclosures but it's important as the questioning is already noted the timing of this to the twenty eighth is when you made it this close and the board found clear and convincing evidence that commissioner ruth decided to fire him befor that we agree the ultimate decision on the part of commissioner ruth was on the twenty seventh he said it was the meeting on the twenty seventh after that he said enough enough i've got to here with  mccarthy i'm ending it now with the board found it that that was the culmination of a long history of a problem and we agree with that as well there's testimony if not just pett said that commissioner ruth came to him on the twentieth and said how do i remove mr mccarthy and mr pett said i'll find out for you i'll get you a document and that's when  the longer answer is under the statute all the agencies have to show they would have taken this action out in a way and the agency demonstrated that that i was getting into all that all the reasons all the evidence of the agency presented that commission route would have removed  determining factor the car back doors are just a way of getting at that so in most cases we don't have such clear and convincing evidence we don't have that the commissioner at thirty made that decision as acknowledged by the other side and made him twenty seven we don't have that in most cases so what the board has to do is look at the three card factors and weigh them all against each other how how likely was the agency to have to remove them can i have this just for my own my own edification i paid for when the board deals with this i don't know why the board just focused on the air at the other employees i think that is the real answer is this is the agency's purpose the agency can present to support its the conclusion that  it this isn't that like the kind of imperative that impaired other people and now that that takes place under chapter seventy five this is different because the ultimate question this goes toward is has the agency demonstrated that it would have taken this action it doesn't go to whether the agency would have removed him anyway because it's immaterial it's completely beside the point what the agency would have done with respect to anybody else we he she presented some evidence that graf and forty did things that were similar in some respects to what he had done and age he didn't remove them ok that's that is what it is but that doesn't say anything to contradict it that the eight that the commissioner had already decided that he was going to remove mr mccarthy in the border didn't didn't have didn't feel the need to get into that and didn't get into this but there's a very big difference between the agencies council and the cia and the compliance ruth testified to the he perceives there are two different camps and he wanted mr mccarthy to help them with his problem and he proceeded as mccarthy didn't help them with a problem but in fact made it worse because mr mccarthy chose a side and just joined in the battle rather than helping him bring disclosures it has absolutely no one steps because even a piece for some arbitrary ridiculous reason had decided and even though my heart and several people did the same thing that he was going to pick up mccarthy what we know is that had nothing to do with a moment of truth because that decision made before yes you are so the other two part factors of the point in our brief are basically swallowed in this case because the statutory question is already been answered the point to they are  thirty five sixty five sixty one either these are commissioner ruth's notes and on their face they weren't written on the date on them on the first one it says the last census kevin later provided me the attached information for that's not something that he wrote on july twentieth he's talking about something that happened after july twenty these these are these were not presented as this is exactly what was written on july twentieth this is commissioner ruth's notice about what happened was the probationary is is not the right term he was serving in that initial two year period where he didn't yet have a permanent board right so i understand that that's not the argument they made that raises another question in my mind and this was a removal which would fall i gather for inadequate performance under chapter forty three right rather than a disciplinary removal under seventy five he would be a disciplinary under seventy five do you think the the commissioner said that he and in his in the letter it says it was because of fostering this the visit of relationships it wasn't it wasn't because he was a good employer it was because he  advice and that all goes to as evidence that commissioner ruth in fact would have removed him if not it's not some kind of finding on the part of the board that he wasn't a very good lawyer that would not what was found it was just a commission of ruth didn't believe all of his legal advice so that just goes to an additional piece of evidence that commissioner ruth was telling the truth when he said that he would that he made the decision on the twenty seventh to remove that and there was a lot of other testimony declaration from an ip person of the agency from a foyer proceeding that was not before the board and therefore is not for this court but in that declaration the individual says that there was a periodic writing over that happens on that in the computers this is after the fact one person going back and looking at what may have happened the the answer to all the questions about discovery in this case is of the agency withdrew all of it and said to mr mccarthy's attorneys it welcome to come out and look at whatever you want and they said no we don't want to do that and the board said to the judge gave him the opportunity to explain why the agency wasn't doing enough in terms of discovery and he said as you point out in our brief that he wasn't willing to do that either he was going to explain to the board why he thought that the agency wasn't doing enough so that's why the board found the work to be discovery abuse rulings here because so the agency here is really falling on its sword on the ideas that the decision was made before the disclosures there essentially not arguing that it against our case that the reasons given were false that things like being divisive and discordant are simply chemical of what happens when you make a whistleblower disclosure they're not written on retaliatory reasons they're not arguing that there wasn't a strong motive to retaliate based on the disclosures or that there weren't similar sort you waited people treated differently but that it all doesn't matter just because ruth decided before which is a very shaky  that it's supported by had three air and brand pets in fact testified that he met with ruth one day and he was very angry and asked about harvey but then later he wasn't so angry anymore and it appeared that he the perceived whistleblower matter if so it's a legal argument it's not a claim but it's just a a view of how the case law applies to the situation if not a separate claim that would have needed to be put before o very happy with you i think you better work on having a better relationship with him he wasn't think i did was have the money was that the reason he did that was because he was so impressed ruth was so upset and so mad that he thought there was a very real possibility of a fire and disclosures when a disclosures were made on the twenty eighth he flew to washington d c to talk to the state department about it he went there and he testified to talk to the state department about the disclosures and his desire to remove mccarthy he wanted to find out and he brought that false mistaken whatever s s t with him and he said look he's a probationary can i just fire him based on his legal memos he it appears that he didn't even make the decision after this to disclosures until he went and consulted with the state department as to whether he could do it without cause but would suspect of a question of the probationer versus on probation what's the difference legally between a probation or in the competitive sure and a an exception service employee who's not in a preference eligible and is in the first two years well this is something admittedly there's law about it but we would contend that because mccarthy was a permanent employee his correct at that fifty shows him as a permanent non provisional employee now it's true that until two years he doesn't have rights under chapter seventy five for that thirty days notice and so on but because he is permanent now and probationary you know we argue that he has due process rights under the constitution to literally want if there's even a law that says to the contr property right the expectation of continued employment he does still have a liberty interest in the supreme court has ruled that you can have a liberty interest even without a property they could raise that issue so the bravery of you can't raise that issue i replied well it's due process claim that you know which interest it comes under property or liberty we made a broad due process claims in the agency's reply brief they did mention liberty and i believe that this court has ruled even recently that when it's a constitutional issue you don't have to strictly apply the rule that you can't read something in a reply brief well but but to get back to the question i have is as to the difference between a probation her and a once again you see wondering whether there's any difference between a probationary period of service and mr mccarthy well you know putting aside our argument about the due process i don't think it really matters in this case because erroneous as if fifty well i think what matters there is that the agency believed that they would have a different process for removing him depending on whether he was probationary or not and that's why they took this fall that's why mr ruse took this fall and said fifty to washington and he testified all we talked about was when he went to the state department to talk about this after th we talked about was the s s fifty in the promotion area and that will because he believed that that was necessary for him to be able to remove mccarthy without cause and based on those legal memos that contain the same material as the protected disclosures and so the agency whether they were right or was that it made a difference you know they were using this incorrect document to bolster their case that they s you know they they claim they don't need cause so it's really me either well i will i mean it's either in the sense that he doesn't have chapter seventy five right you know