will hear argument next in number two thousand and nine three two six eight leered and against the department of homeland security reversal first she confused the requirement that an employee prove the us p b s jurisdiction by making non frivolous allegations with the sufficiency and reasonable this of those allegations second she also made factual determinations of what she thought was reasonable before captain reardon had any chance of discovery or hearing and third she did not view his pleadings with the legal instanter appropriate for a pro se appellant before the m s b so let's take the first well if the problem i'm having is let's take the what seems to be the potentially the most serious allegation which is interference with the evaluation process by a political appointee weird because the statute or the regulation or manual forbid th protected against arbitrary action personal favorite is a or coercion for pl partisan political purposes judge the administrative judge just concluded without citing any authority that that  jamieson was free to get the these kinds of reports and and he wasn't he would have no purpose he has no he's all right he's not a writer for any of these people why let me ask you this i'm not sure  purpose suppose that i'm a second levels supervisor and i've just come into the job and i want to get a sense of who some of the stronger performers are who are some of the more problematic performers and who are the frankly the the serious non performers in in a large group and so i call me my second level first level supervisors and i say give me a description of each of these people had their doing one of their strengths one of their weaknesses they would mean that with their well it in that if you're not a raider and if you have no basis for you're not going to be performing any of these ratings and by the way is not a raider but i'm a supervisor and i want to know who the strong members of my team are that and that's fine once those ratings all come out no no no no i mean i'm going to do this i not even it's not part of the reading cycle i've come in ratings a and i spring i'm coming in in october and i'm going to get a sense right of the bat who i can rely on and who have a problem i can see that as us as a supervisor you're entitled to see employee files and so forth i want to know is right now prospectively how these people are who's good can i not do that within the cycle understand the timing of this this is right at the the september thirtieth is the cutoff date this is october for this is right after you know i guess it's right it's october so to that i'm well give me my hypothetical now ok your hypothetical here is that i'm in spring if this is april then yeah there's no problem with getting the files and reviewing last october's reviews i'm not reviewing past i'm want to talk to my second level supervisors and now the people i want is just a discussion of how they've been doing of the is their performance discussions happen all the time and are appropriate within the within the cycle what what we're getting at here is the the formal evaluations that come out on september thirtieth and the the political appointee right on the eve of an election reaching down into the the system and and having and having an effect on people that he has no business rated how the earth do we know whether he's having an effect or not having an here is that there is no purpose for that for mr jamieson to get all of these reviews before they've been finalized and and get them before they've been fin d except to influence them in some way which is what and this goes back to your question what was the exact statute it's twenty three zero one b eight a and that is incorporated into what reardon actually complained about because that's twenty three zero to be twelve if i'm not mistaken which you have here if you look at well over sixty four bonds is providing this information in advance really leaves the impression that he may be attempting to influence the way in which this subordinate waiters reviewers conduct their annual employee performance evaluations so exactly what provisions says that the supervisor can't influence the rating valuations i'm sure you want to wear when you're reading from to the bottom of twelve zero sixty four this is the from the bomb email that's right and it says providing this information advance leaves the impression cetera et cetera and that's what that's your contention is that that was it what was going on here that he was attempting to influence the the ratings by the  i believe that it's the factual record will be able to be developed we she had directed that ratings could not be finalized and until he reviewed and approved that and that's the obvious interference it was employee appointed hearing that all of the supervisors had been called the end to get an assessment had decided that this really was a that a predicate supervisor exercising some political determinations as to individual employees and so forth and complained on that ground would that be protected disclosure in your view i think so and what would be the and  it would be protected disclosure because asking the supervisors to give their informal assessments of the strengths and weaknesses of various employees would have the potential of creating an arbitrary or politically skew decisions by the supervisor would that be the theory i think the theory is that it's a violation of the of the very carefully regulated procedure for performance evaluations that this political appointee is injecting themselves into and that that that would be inappropriate if they it certainly is protected to to if the employee reasonably believed believes this is this say i think that this is a violation of law with no real basis i gree with that it hasn't it has to be but has to be a violation of law for sure and and reasonably believed to be a violation of law  was to mr stephens were a person who had already seen the commission he was on the original email was he not yes so bringing that if that's the disclosure the jameson request for all this material how can you have a protective disclosure that's already known in the possession of the person to whom you disclosing it well i think that i think the disclosure is that this is this is a violation of this is wrong this is illegal and that's the stepping up the the whole was a proper touch an act is designed to protect people who step up who go out of their way to point out wrongdoing and here he's saying to mr steffen someone who's in a position to fix that say that this is wrong he shouldn't do this when you have that so your definition of disclosure is let's say somebody reports to the washington post that there's a leak at some here kind of a classic whistleblower and nd and that's it you know and the disclosure is god this is a problem there's a leak in this facility and let's assume it was all over the airwaves million airwaves that this facility is leaking with the fact that he added to that saying there's a problem with this the make that protective disposer i guess i'm not seeing how his comment which is i think this is a problem turns what is otherwise not a disclosure at all because it's already known you're not disclosing anything when it's already known into a protected piece of shit i think it's the it that the disclosure is the key combination of looking at what has been said to a e mail group and then and then being the guy who says hey this is wrong and steps up and says to the says to someone in a position to  close to that in terms of parsing the the difference between the disclosure of the actual that and what happened versus the commentary that it's problematic if i do i'll find a figure on our blog by the time i'm back up on my feet  i don't bet but don't readily let me just before my time runs out addressed the the other two points that that that i believe merit reversal and that is that the administrative judges requirement that that mr reardon come forward with with evidence and i want to point out that there is a way to submit your forms by clicking a little box that say that you submit them under oath to the extent that the ministry of judge did not credit those his pleadings as being verified i wanted to point that out and then secondly i want to just or third rather is the is that the leniency where is the pleading s is that illegal for political reasons not just without regard what reasons personal in the minnes you know his own view of the performance of the person or whatever it is he says i want you to write this person this way i spent some time looking at that exact question yonder in the closest that i came up with to answer is and this court's decision in a case called doyle issued in two thousand and eight where this court said there is nothing arbitrary or appreciates about the chief of staff of a medical center v a medical center reviewing and commenting upon the quality of performance evaluations written by his subordinate supervisors well but that's sort of looking at the valuations after their peer is not what we're talking about but but does suggest that there is certainly nothing wrong with the supervisor saying there is something wrong with the evaluation in my view that my subordinate needs to fix  evaluation whether the supervisor could reach down and actually wholesale change the tenor of the evaluation i don't know i have not seen any regulation that prohibits that and there's a problem if it's done before hand is there i mean as i vaguely recall i mean there are all of these steps you have to fell through in terms of finalizing the performance assessment including input from the employee and all of this stuff and if somebody reaches out on high and that there's no indication in the e mail that just i pointed to that's at the joint appendix at twelve o six four that indicates that mr jamieson was seeking the information in order to interfere that is pure speculation while the other side said there's there's no legitimate basis so what's your what do you think is the legitimate basis upon which he could have done it if he wasn't going to interfere if he wasn't going to observe himself into the process he just wanted to know what's going on the budgetary process for one and i can see in my own organization superior saying i want it we want to know for hiring purpose how many people are going to be fifteen fourteen thirteen we need to know how much bonus money we should set aside for what the expected bonus payouts are going to be like there's all sorts of an activist reasons  fact the e mail also indicates that they were planning when providing the e mail when providing the information to mr james and they were going to scrub the names out so it was just going to be aggregate data and that's where tony burke here is whether he gets a here or whether he's brought in enough to get a hearing rather than him dismissed on the pleadings in the years brought in an e mail from somebody that suggests that it creates the appearance of doing if in fact we assume that it would be illegal to do wit why isn't then enough to get me on the question of whether that's what was going on i mean after all he doesn't even get this government and until he gets past the jurisdictional threshold right that's correct and the issue is whether any reasonable person could take a look at this email it's one of those six four and assume that there's necessarily something that's that's wrong with it it wasn't sure that's the standard why is the standard that somebody take a look at this e mail and say there's reason to be concerned and to think that there improperly interfere on a political appointee level with a merit system decision and the problem is is that the e mail has nothing about mr jameson interfering and so that is an inference that is unreasonable unwarranted it is not inference that and that is exactly what the with the with the a j found at the joint appendix at night that that dr reardon quote never explained how he arrived at his general conclusion that mr jamieson intended to influence or manipulate the ratings process well what about the e mail on page twelve sixty four which says i mean suggests that at least one other person had some concerns as to the propriety of this yes but the test is an objective test and this court has held before that we don't look to see whether there are other people that agreed or disagreed with your concern and the fact that one of the questions what he was doing and you not only have that e mail them on the e mail you stephen email in it which says this approach seems to allow very senior ranking officials we need an organisation to have input that they would normally not hear regarding fairly low ranking repeats so you have  to have two people who seem to think that there are this might be done in order to influence the ratings in if you agree that interfering with the ratings in advance would be a violation of law violate the law or house of pure political superior to intervene in the writing process i want this person reviewed this way before the writings of come out would that be proper or improper with as long as there was some proper basis for the rating assuming that the rating is not arbitrary and capricious and of itself i don't know i have not seen any i mean that makes it unlawful even if the official is saying i don't care what the employee has to say it is defense i don't care what any of the supervisors may say from their own who have the rating fluorinated and have greater knowledge presumably about the employee i want this employee rated that that would sound like a violation of the spirit of the rating system all i'm saying is that i've looked long and hard to find whether a superior to steps up can actually dictate the rating subordinate and of its two levels down subordinate and the most i variance from the appropriate designated process so you know whether you call it a violation of law because there's some independent legal prohibition against that or whether you simply call it a deviation from prescribed procedure in both cases it would seem to me that if that to take judge dykes example that would seem to need to be an irregularity i e not complying with the  dictation bias to level up superior starts them would violate that procedure we're going to find the procedure but it's not and the record your honor but petitioners not suggested that there's been a violation of of any such procedure merely by asking for the information the whole cable that they're going to be the problem we were just discussing whether or not we were soon meaning that he was going to implement or that someone would have a reasonable belief that he was going to influence the ratings and as i understood what the judge the administrative judge said in this case is that she might have well agree but what she didn't do was make the leap from the request to the speculation as she termed it that he was going to influence the rate so i'm that clear that if she if if he had said i want to i'm get i want to i'm asking for these draft proposals because i plan to take a look at them get my input in and influence these i'm not sure the a j would've come out differently here i thought she was just hanging her head on the fact that there's no evidence that he was got that that was the purpose of the request i believe that's correct and no one and net so it's predicated on the fact that no reasonable person have necessarily assume that the request was for the purpose of influencing or manipulating rates is that the way you understood what happened here yes your honor so the question i'm back to i guess is whether or not those e mails at least we have a few people that knew about that were alerted and it appears as if mr reardon was not alone in at least thinking there's a possibility that that is at least one of the purposes of the request but again you end of the case this is that the question is whether it gets discovery and a hearing whether or not for these e mails to raise a question about it so that the m s p be should allow it to go through the procedure to develop the record to see whether there is anything to this or there isn't anything to it but nope it would vote no reasonable person your honor could take a look at the e mail by mr bond at twelve o six four and conclude that mr jamieson was trying to influence the process it is not a reason conclusion he simply requesting  six four would be that this because this concern had been raised i wanted to avoid any possible inference that there would be in this use and therefore they said that's that's just back off and not do this counsel someone has a concern to me just that this process value and make sure it's ok that doesn't post facto mean that the original concern was a reasonable one that just means that people are go cross their t s like agency folks do every day and if that were if a simple email request to do that were to retroactively make an earlier concern whistleblower disclosure  jamieson and the disclosure by dr reardon was only to mr stephens and this court has held that a number of cases that that when we talk about a disclosure we're talking about a disclosure of conduct not at the school over of the gallery and so captains as well and they say and they say disclosure means to bring into view by uncovering and relates to the underlying conduct rather than to the asserted fact that it's unlawfulness in order for the disclosure to be protected by the deputy that's alleged impropriety something of the no two is is that i'm not sure that because the disclosure that we're talking about now of the requested information is actually described i take that  including mr stephan as for that matter mr stephan mentions in the presence of mr jamieson and mr he says i'm going to fly to tampa for a conference and i found a cheaper flight so i get to put the rest of the money in my pocket and mr james and love good job on finding the cheaper flight and suddenly than mr reardon says well you know you can't do that that's that's contrary to  the all the federal rules on voucher for a ride and then he gets fired because he spoke up that wouldn't be within the scope of the whistleblower protection and i don't believe so because in that hypothetical dr reardon is actually making the stephens was traveling and then pocketing the excess money mr reardon went to mr jamieson and said i know you know that this is happening but let me tell you that this is a gross violation of the voucher rules and mr jamieson's responses thank you very much for telling me you're fired yes in fact i believe real k i believe your honor under the cases that i was citing before one of them actually dealt with the travel policy that someone alleged to be unlawful and the court found that and the wrongdoer they're aware of the conduct was unaware that it was unlawful or improper and then the put begins nevertheless are nonetheless the report would not be a protected disclosure because the disclosure must pertain to the underlying conduct and at the  amending your answer the judge grayson he asked you is that ok and you said yeah i mean i think perhaps the answer is that may not be ok if this person appeals has just charged it makes it clearly the purpose of the discharge under the false claims act it can be it under huffman you can't come in and be a me too but you but you certainly can be the first one to point out the implications of the wrongdoing as being illegal and be covered  case i confess i haven't read recently but a chief of staff of a medical institution doesn't strike me as a political appointee that's a distinction there as well one thing that we have not talked about is the disclosure to mr jamieson about must what mr steffen was doing and then mr steffen when being confronted with that and knowing about it was so very angry at m also is a protected disclosure before too and the argument there is not to not to reiterate what's in the briefs but just quickly that that the the i don't believe that the administrative judge took account of the fact that mr reardon was still in a probationary status and was still competing for the job and that mr stephens what mr stephan was doing by acting out his responsibilities was was interference with you question about what would happen suppose there's a hearing in this case and i'd want to see how this would play out in your view and suppose that mr jamieson comes in and says well the reason i asked for these particularly with the names scratched out is i wanted to get a sense of the overall strength of the the work force and i i think mr sampson suggested i want to get a sense of what we are in for by way of promotions and bonuses and so forth where that to be his answer would would that do you think  that now would that mean that he would lose his claims if yes if that was believed i think that yes but i think there's one fact why does that make his disclosure any different can mean don't we assess the disclosure based on what he knew at the time and if it was a protected disclosure why does mr jamieson zoltan at testimony about what his real purpose was have any effect on the protected nature of the disclosure i would have thought had said no and i think i misunderstood i think your honor i'm trying to get out a factual point that i maybe with the panel doesn't know and that is that this e mail at six o'clock was all preceded by something and it was all preceded by riordan going to mr stafford and mr bond and that all of them talking about it and them agreeing yeah we this is rob and then and then that e mail comes about so it is that regional disclosure to mr stephan sort of beside the point what really matters is that riordan raised the concern he put himself out there as having a concern to his superiors and saying what you my superior doing is illegal that's what the i'm certainly i'm trying to get over a jurisdictional hurdle that i've been denied to be able to yet discovered he'd be able to have a hearing to be able to prove all these claims but what i'm having trouble with is one of the things you have to prove is that this is a protected and it either is or isn't is there anything that we don't know now which we would know with the end of the hearing that would tell us that it is a protected disclosure even though we concluded now that it was maybe the answers on the l a piece yeah i think that i think that's the point that if we are going is correct then it's a protected disclosure and so we don't need to have a hearing on that issue at least i think that's