the doctor has pommy must demonstrate the existence of a genuine issue of material fac there is a distinction between the requirements for fail on the merits of a w p a claim and the requirements for jurisdiction to succeed on the merits the employer must establish that the protected disclosure was a contributing factor in the adverse action future patients and the nd one is perhaps having prolonged treatment would create some sort of medical conditions for veterans who are being treated but i don't feel like i know th issues based on the record and i also am not sure if it's substantial danger to public health and safety and that's what i'd like to see you you are on a doctor has found me disclose at least seventeen ok that dr nichols was prescribing older more expensive drugs some for a beer and so for a beer these drugs must be taken for a longer period of time weeks longer they're also much more expensive so you are correct and the doctor who saw me was raising  belief to disclose her concerns about dr nichols prescribing practices he continued to prescribe after the moratorium was put in place and with the older drugs that had to be taken for a longer period of longer would expose them to greater side effect and that the newer drugs have already had fewer side effects than the older drugs ok i don't see where it says the other drugs have and her declaration to think is where your identity pointed me to and i also don't see where it says what the side effects will definitely happen or what they were but also is there anything in disclose that there was going to be a very significant budget shortfall and two thousand and fifteen because dr nichols started treating four patients at a cost of two hundred and eighty thousand dollars and prior to this the facility had projected total costs for treating seventeen dollars patients to be two hundred and ninety thousand six hundred and forty five dollars meaning the doctor nichols was leaving the facility with ten thousand  six hundred and forty five dollars to treat thirteen of the seventeen patients so this this is not conjecture on doctors part it's very precise and specific and she was concerned that a show is that she had a good faith reasonable belief that it could happen and given those numbers it is entirely possible that there could have been a denial of care for thirteen of the seventeen your show is that a person a reasonable person in her shoes knowing what she knew would have had a reasonable expectation that if that's the inquiry right we don't actually look at her s her subjective views it's an objective standard isn't that correct that is correct your honor and given those numbers it would make some and every reasonable person would understand that there could be very few funds to treat the remaining patients the agency argues that because dr who tommy is not a medical doctor that she could not have had a reasonable belief that there was going to be a budget shortfall but if you do look at the specific situation here dr tommy was part of the interdisciplinary team and she helped develop these protocols so she had a clear understanding of which drugs were less expensive safer and could be used for shorter periods of time  situation and was doing some research to determine whether or not they were going to have to turn patients away but during the course of these disclosures but she was making over time she was disclosing it is a possibility that we're going to have to turn patients away we have very few fund bluffed and beyond that the these older drugs are not as safe and we should not be using said we will not turn down any patients because of funding he even said you can fool me about the funding that seems to belie what you're saying right now how do you respond to that your honor at a certain point doctor has tommy did learn that the patients would be not would not be turned away before sending that e mail she was unsure that's why she was making her disclosures about why she was researching and keeping in mind that a whistle blower need not be correct they need only have a good faith reasonable belief that the harm is about to occur and she did at the time that she was researching determine whether or not they were going to have to turn these patients away i understand but this is information that you have to take into account when you're saying what a reasonable person knowing what dr hassan he knows believes that there was a danger to public health and safety and this e mail i guess i'm still not sure how you're responding to it except maybe that this was just her view at one point in time that's that's correct your honor she was researching the situation she was disclosing that patients were going to have number of other senses that say something a little bit different like to the school versus marriage system johnson versus merit your most precious department of veterans affairs where we take a different take on this for that i'm concerned on your your attachment to to the standard that that we should apply here it's equal to a summary judgment thank you or on or in this particular case the administrative judge asked the parties to brief jurisdiction after discovery had closed which is why i'm saying that the case more similar to a summary judgment standard and that the parties were not filing their briefs just what was within the four corners of the complaint but protection board it really would not matter what standard the court applies whether it's summary judgment which is in the court's precedent and con in other cases or if it's even if the court changed the standard to more of a motion to find jurisdiction was that there were disclosures that were protected under section act and he found that there were no protected disclosures here so he did not go on to the retaliation issue  that there are personal actions here that were taken in retaliation for protected disclosures then yes it would it would definitely go to a hearing to decide the  merits the reason the judge the administrative judge found that these allegations were mere conjecture is that there are no really no specifics that support her allegations for example she admits that she has no information if you're talking about the so called moratorium there are e mails there are a lot of e mails about that subject in the record that are not disputed at the time that this this moratorium was going on there was only one drug available at the medical center so during that time they were holding off on new patients but existing patients treated by the drug that they had available as an s and so an e mail doctor sent me questions why this was a bad clinical decision by dr nichols to treat these patients because she never found a civic counsel why did she have to explain why i mean under the statute doesn't it just there's two different categories as for a danger her e mail doesn't say it's a danger it says that you know she's focused on the costs involved that by waiting three weeks and not giving these patients medication it cost is not sufficient to satisfy that category she just asked it to address the benefits side of the equation and whether because the question isn't just how much is being spent that it that's just you know that's just a label for the information but what's important to know is how is that cost significantly out of proportion to the benefits that a reasonable reasonably expected charge still let's say let's hypothetically say that  dr nichols started for patients on an old drugs and actually it was a one million dollars or ten million dollars amount are you saying that she would have to go further and specific danger to public health she doesn't have to say it so i would prefer that you sit here and talk is about why it is that this isn't evidence statutory category would be gross waste of funds and it doesn't mean that because she doesn't go on to address basically what dr nichols is doing wrong other than the fact that this costs dr nichols has his in the clinic and he's the one making the decisions about how best to treat patients and throughout this record there is plenty of times the policy is stated that it's up to the commission to decide the proper treatment that the medication you know it's stated on for example page ninety five anti viral treatment should be provided for any patient for whom you believe friedman is urgently needed so i think to to make an allegation the specific enough to have to address you know why this treatment isn't needed and why this is proper to wait another three weeks to treat these patient that's something that's never raised simply say how much something cost is not sufficient numbers here in terms of you know you know if you again what about my hypothetical i asked you i know i asked you a multifaceted question and i asked you a hypothetical  let's say hypothetically that dr nichols started four patients it's very few one million dollars even though the cost of the drugs is two hundred and eighty thousand dollars would she have actually needed to say more than that yes you need to do somehow charged the government a one hundred million dollars to be a one hundred million dollars for drugs that only cost two hundred and eight thousand dollars yeah that sounds like that would be wrongdoing explain it right and she said that he was spending that much money on drugs of course in this situation the drugs were being dispensed by the pharmacy and they were obtained from you know v a through the v a s contracts with the pharmaceutical company so the prices were set but somehow he was able to charge money for the drugs that would be wrong doing that you know that's not really a citizen really analogous to what's happening here where i understand i just was trying to get at the point that i have to explain a reasonable person in her shoes knowing what she knows we know what  well if you wait three weeks we can save some money the problem with that is that it doesn't address the actual patients involved the specific needs of the patient and the purpose is not just to give the patient medicine  expenditure was significantly out of proportion to the benefit reasonably expected to accrue to the government prescribing practices in december two thousand and fourteen and continued to do so until november two thousand and sixteen which i think might explain why as a certain point she researched and