good morning your honor may it please the court i'm george choosey and i'm representing dr cindy tang who is a f d a scientists who reviews drugs for the f the notice to show cause just not in the know your honor i i don't believe that the judge was fair when he reached that conclusion what what i did and our supplemental brief was i laid out what the legal issues were in terms of the missed deadlines i then indicated which with the disclosures and what those disclosures showed i did not it's true protected disclosures when they were made who they were made to know the when they were made and to whom they were made are not relevant factors and jurisdiction the fact of the matter is dr quoted from my emails he objected to the fact that he had to actually look them up but he quoted the emails whose references i provided to him he then found that dr tang had not done reasonably disclose violations of law rule or regulation but those findings were reached on non relevant non a political factors he found because there really is no reasonable dispute these are not facts or case even at all or even close i know that but i guess you're saying he or she i don't know the age in this case reached findings of fact that were beyond the purview of what they should have done at this stage in the proceeding that's right and i am just trying to ascertain what kinds of facts they can think about in the context of deciding whether an allegation is nothing so you go to my hypothetical yes if there's really just no dispute that her supervisor was not in the car and she was the driver the vehicle would be a j v three at that point to say i find that you were the driver not your supervisor and as allegation understanding that there is no decision by this court that addresses that particular point in the watson a case decided a case cited by the government this court held at a hearing after hearing that if the evidence disclosed that the violation was the result of conduct by the disclosure that in well based on the principles that are at play here a judge may very well find that the it was not a non frivolous disclosure we don't have undisputable evidence in this case in piccolo this court made absolutely clear that it's not the judge's job on a jurisdictional question to work to weigh evidence evaluate credibility and reach a decision as to who  we we've said i believe we've said that this is akin to a summary judgment determination where you look at the record and to determine whether there is genuine it any genuine issue immaterial fact right yes and what  doing that even if your client mates are and allegations the board can look at the record and say it was you may have made that allegation but there's nothing to support it so i find no genuine issue but there was nothing for judges do that all the time well yes and no i mean in this particular case all the evidence that the judge had were the e mail disclosures the and and i will grant that the agency superiors who were the subjects of the disclosures they they had their arguments as to why they had not engaged in a violation for each of their arguments dr tang had a response of e mail sometimes going from multiple pages arguing why the superiors suggestions were not accurate in that case i don't believe a judge could grant summary judgment even if her reasons were entirely for less but how how how could anybody judge whether her reasons are frivolous without looking at the underlying record and without giving us the opportunity to examine to cross examine on the record we had the e mails in the back and forth which was what the disclosures were dr tang clearly raised the disclosures that her superiors had violated these deadlines and the review requirements they they find them both potentially credible but they can say can't they looking at this record no reasonable person could conclude that she made a protected disclosure no i don't i don't believe that is i don't believe that is appropriate conclusion on jurisdictional do you believe that bill you can't legally do that or that it was improper here because there wasn't an issue i believe both i don't you say non frivolous disclosure here i believe a judge can do that i don't believe that's what he or she did here the next and then where i disagree because i think what the judge did was he looked at the superiors arguments he looked at dr tang's arguments and he concluded that there is more likely to be true then hers and i don't believe that's appropriate i believe that is exactly with all due respect judge i think that is exactly weighing the evidence and reaching conclusions based on disputed evidence which he is not permitted to do how could he it's undisputed that dr tang accused her superiors of violating these requirements they have their arguments there's no dispute that the that the requirements were violated that the government admits in its brief page eleven that the the prescription drug requirement how to do today the two of them how to do date of june th and june th and the openness we do yes let me ask you a hypothetical it's a little bit closer to the facts of the case if she made a disclosure and said you caused me to miss this deadline and her superiors respond and said we didn't cause you to miss the deadline at all we did nothing you submitted the initial request a month after the deadline and and she said nothing in response to that would that be a craigslist allegation that her superiors had caused her to miss that other if dr tang if if dr tang did not dispute her supervisors version of the facts then it might have actual documentary on it so you're right if you haven't answered the e mails does she dispute that she sent these e mails or that or superiors responded she disputes their timeline in each instance but we know with the timeline of the e mails only what if but it's not about judge it's not that it's about the timeline of the e mails it's the timelines that amount to the superiors defense to the claims that they violated  make any any amendments to the us until such and such a day at which time i did them virtually immediately and then i handed in what i was supposed to hand in on june th and at the superiors did not address that until july th i believe that the deadline was violated who was responsible for it is a disputed question a fact when we get the other side you if a petition or alleges that her supervisor crashed a government car and then submits or she disclosed her supervisor crashing a car and then submits hundreds of pages of documents actually showing her supervisor did not crash the government car at the non frivolous stage the administrative judge is going to assume all the documents she said made it in support of his closure are true and make a reasonable belief assessment based on those documents and when the documents show that the supervisor did not crash the government car then the judge is going to determine that it did not make a non religious allegation that she reason legally if she disclosed a violation of law and this court nor the board had never helped you know that's really easy case and my hypothetical was a really really easy case to this one is a lot of e mails back and forth about this fairly detailed procedures and the like and there is at least seems to be arguments back and forth between her supervisors about what's going on why isn't that kind of the quintessential issue that should have that law or a trial before the administrative judge rather than just go off the last page because they don't actually dispute the key facts for the reason i believe tess about that disclosure in terms of who is at fault her exact wording in her  that review and the petition never disputes that misuse did center three separate sets were visions in that time so that part is never just a dispute between the two parties and so based on that the judge in term of the petitioner simply would not reason to believe nor could an objective person in the same scenario recently believe that the petition or misuse refused to work on her work product in that time period and thereby caused violations and moving on to the other my friend just pointed out before that he cited the statutes in his jurisdiction of submission the statute he cited for disclosure three of art a violation of the do as i pointed out in our brief doesn't actually seem to contain their crime and he claims it does it's no where in there is far as i can tell and he provided no explanation as to why this was an actual requirement which is particularly striking when supervisor or her supervisors in the e mails also told her this is not a requirement we don't need to do this and so without further explanation about that statute it's an it's nothing more the conclusory allegation and it certainly was not a friday i mean i don't like that but it doesn't check their e mail the weekend ok maybe not but but still she got it monday morning was it there's no evidence in this record that it was impossible for the supervisor to turn it around in twenty four hours but that feels to me like the kind of fact question for which further development would help how do we know that receiving it on my morning didn't give the supervisor enough time to issue it on tuesday the allegation is my supervisor closed it to be really what we don't have is anything that explains what needed to occur and why getting it at four o'clock on a friday would prevent the supervisor from having it done in a timely fashion by tuesday close of business on tuesday so why isn't that the kind of allegation it doesn't seem that one doesn't see was clear to me as the earlier one where she said i gave it to her and my supervisor did nothing when in fact there were three back and for just closed in the actual e mails she presented you know so that when that when i maybe i feel more comfortable but what about the nd in the nd one her response to her supervisors it in when they accuse her of that was actually no matter when i submit to her she won't get it on time she never disputes again that it was not in a timely fashion and submitting something which wasn't talking about she said this is a mission by her supervisor with some time with her supervisor to review th ignoring all aspects of the and efficiency act and whether somebody can work and we can because of this or did not a wedge that her only response in risk when she was accused of submitting it late was it that it doesn't matter when i submit it sure it will be late regardless so she doesn't dispute that she submitted late and she wants to make a non pros allegation that that was sufficient time that's on the petitioner that's not a fact that the judge is going to assume that she can do it within one day the petitioner wants to the allegations stage so we have no idea based on just the allegations that have been lodged whether or not this was enough time supervisor or not part of the allegation is the document she said she submitted in support of this disclosure and what that document states is her supervisor nd level of ms and or tells her this was late because you submitted it based on the last day or the friday before and then her response is not  e mail you keep quoting from from dr tang that said i don't really care whether i was going to be late or not because or whether i made the deadline because it's going to be late no matter what yes and so she never disputes i miss endors to your original hypothetical admittedly much easier question when she submitted documentation contradicting her own allegation the board's going to accept that true too even if it contradicts her alleged disclosure when she she submitted documentation it's him it's an email in support of her disclosure saying in response she doesn't matter and i submit this the board's going to accept that to be true even if it harms her allegation we're i just have briefly on it that the government's argument that miss tang was arguing that because the june th or june th would do for dates were late that that was the violation we in paragraph four a she says you should also be responsible for five hundred and thirty eight because you used inconsistent standards and to date you have not responded to the i r draft that i sent to you on june  the st one i'm talking about both in her july th e mail to her supervisor she she raises the fact that even six weeks after she submitted whatever the government says was late from her the government had still not acted upon those applications and dr tang is reasonably arguing that those were the violations she's not arguing one day she's arguing six weeks and that's page one hundred and twenty one paragraph three and four and that's why i believe the judge could not simply accept the superiors arguments from day to day