his the substance of his disclosures through public record and the public record we referred to includes u s news and world report stories about the looting that was going on involving taxpayer any which is a russian diamond company that moved to san francisco in the mid ninety's the issue it was whether or not tax payers he did not do so the record is quite clear that mr coon's explained he only raised in his whistleblower complaint issues which could be found in the public record he went to the court records and my instruction when i first met with them and in fact my statement is in the record because i was questioned about their stated that all of the information provided to me with information i could have on myself and court record the concern here is that the whistleblowers who are trying to raise their unlawful treatment in retaliation not be precluded from raising those issues publicly the p d hearings are public hearings and we were very issue mr coon's was taken out of his position is four hundred employees were taken away and february nine hundred ninety eight that those charges concerning his alleged misuse of his government computer on the nightmares and the other things that made it very very difficult for him to function during that period of time and then the i r s recognized that they said that they immediately offered him travel restrictions and other accommodation to accommodate him they cannot have it both ways they cannot they both we recognized the need to accommodate you but you aren't disabled that's inconsistent and it does and we were allowed  if someone i was having some problems and the employer is doing something to assist with that that doesn't necessarily mean this or meeting that there's a disability under the act well i guess there if we could develop the record more fully we would be able to talk about what was going on more with mister  had a one to one moment in time in which he engaged in protected activity rather than the fact of the matter which is from one nine hundred ninety six on through his forced retirement in two thousand he was engaging in activity pornographic materials that they had of the labor relations department took off of his home computer during thanksgiving a few weeks before the hearing in one thousand nine hundred ninety that it ministry the judge looked very carefully at the computer records and a few minutes looking at supposedly pornographic sites we don't know who exactly did that mr coons admitted that he had some instances while he was learning how to use the internet where he mistakenly went to a bad site those demonstrated that he is in fact a person with a disability with respect to the retaliation claim with which is where i will spend the bulk of my time today that claim fails because this claim fits within that there's already some indication that there will be disappointed in gauges and protective that protected activity that protected activity in and of itself will not be enough to raise a question of back for us to question whether or not the activity in in august of one nine hundred ninety seven is when the first woman who entered into his room and so are the first explicit sites it was not until the key to those statements your honor is that there is no question that the investigation was started separate and apart from anything that had to do with those two with the two matters the investigations were act retaliation claims are his filing of an o s d complaint and his request for an accommodation with respect to the request for the accommodation that did not occur until judge i think had very explicit and very clear findings why he agreed with and rejected mr clinton's claims that's not the same as the retaliation claim where it might be the noble standard with respect to the necessarily second guess on the whistleblower claim the administrative judge on those credibility type judgment respect to i suppose i should address a couple of other statements that were made by counsel with respect to this idea that there was in fact a new defense on the whistleblower claims that was what was may not speak entitled to protection because certain disclosures he made to the newspapers it was clear however and the administrative judge's findings on page eighty three threw in the six of the supplemental excerpts of record where that in this case those disclosures mr coombs had every opportunity to prove were protected disclosures but that they did clearly include for example is this always the complaint which contained detailed information about the taxpayers in this case so he was not entitled to protection under that area the under for those disclosures also with respect to that stain claim it was not a new at all it is not a new defense at all the law at the time was that that certain disclosures that matter that a person seeking the protection under the whistleblower  act needs to demonstrate that his disclosures are not specifically prohibited by law that is by statute and then in the citations by the administrative judge of temperatures general services at fifty when he spoke to the press he had in his possession confidential taxpayer information and he disclosed that confidential have to carry information to the press debate in the court as to whether he specifically named names and instead of actually naming names he said we know who those person you can figure it out if you look over into the papers and lead people to the names giving us the suggestion that perhaps it's ok not to actually say the name but to indicate who the person is we would argue that the administrative judge's findings in this regard are supported by substantial ev counsel complaint only dealt with issues that were matters of public record is ok in this regard the administrate of judge's findings control and in this regard we would argue that the administrative ju absolutely my understanding is that is not minors and your honor please i would actually submit supplemental reaking on that or a supplemental citation my understanding is that he made his disclosures if not make a disclosure that was specifically prohibited by law when he failed to do that and he was the one with the ability to demonstrate that because he was the one making the was and in this case they had hearings on that now and there were factual finding also with respect i suppose it's worthwhile to take a look at page thirty two to thirty five of the administrative judge's decision he does put out a clear record of how cones in each interview disclosed confidential and give information with respect to the former employee of disclosures the administrative judge concluded on pages twenty five to twenty seven of this decision was disclosed or limited to activities of a former federal employee after he left activity of former employees with a more in fact there is nothing that says that directly but in fact the statute is not apply to activities a former employee is doing  regardless of whether he had ever been an employee instead the statute that we're dealing with the whistleblower act is not intended to create protections for that sort of activity instead it's to create protect is to allow the government and the people to correct government wrongdoing not former government person wrongdoing yes right and the question in this case is whether the whistleblower protection act is intended to cover that sort of wrongdoing instead we have a separate set of statutory rules that apply to former employees we have a separate set of unfor or our argument here is is that if you're going to deal with the whistleblower protection act if you're going to speak protection under that specific statute then the disclosures that you make have to do with government disclosures or in government wrongdoing and not with wrongdoing of persons who really no longer have a connection with the  and so there are two decisions that have been made and again i'd like to emphasize our position with respect to the difference in the standard of review with respect to those kind of those decisions when we look at the civil service reform act claims it is important to understand the actual decisions that were being made and the nature of the four day hearing that was conducted by the administrative judge there were a lot of credibility issues being decided at that time most of those issues are not being challenged here most of the decisions made by the administrative judge are not being challenged here and there's a good reason for that the substantial evidence is a very deferential standard and that can be contrast it with believe from the different sorts of decisions that this court should make and can make with respect to the to the rehabilitation act discrimination in allocation claims it is important that when we look at the findings of administrative judge we take a step back so and be sure that it's a differential standard and that we do not do what we are entitled to do with respect to the discrimination claims everything will change that client which is reviewed and over both the administrative judge and the district judge were careful in their analysis very careful to identify the exact claims being made there were there was a lot of back and forth and changing and shifting but if we're focused on exactly what the claim is and careful not to allow one claim to bleed into the other it becomes very clear how the administrative judge focused and why it is that his opinion was so long and how it is that he kept the record straight and the same with the district judge in this case it were a lot of claims over three separate orders making sure that we understood which claim appeared and  whether it was exhausted whether it actually had gone through the process and whether the accidents that was being identified in support of that claim could actually support the timing of a claim with respect to this case it  emphasized that the timing is important in certain respects and see that identified judge we started off with an investigation that began from two separate supervisors referring it to the  which it is clear that the that mr steele is going to be disciplined that letter identifies the fact that he's going to go on detail and that he will not be back from detail until after the investigation is concluded and there is a decision made on what to do there it is in that letter a statement that these are serious allegations allegations that we're not just going to ninety seven and the request for reasonable accommodation occurred after mr coons went out on leave to receive letters pressuring him to take disability retirement and he requested came down in august one thousand nine hundred ninety eight he was then his reasonable accommodations with respect to the travel restrictions were taken away and he was put into a job requiring travel so the timing of the entire career was not running around talking to the press he did not go to the press until april and may nine hundred ninety nine he went very discreetly very politely and you will not find the articles that mention his name in the record the articles there are in the record of articles written by paul to provide winning author and investigative reporter in charge of looking into the tax problems at the iraq david cay johnston concerning the change in the enforcement effort away from going after the wealthy and politically connected and focusing on the working poor and the middle are well known taxpayers that are in the media a lot and the tax problems that they had were vetted in the press to magazines newspapers radio t v repeatedly it would not be difficult to find names he didn't give the new york times a complaint that's an allegation that the iraqis made but the big complaint the o s d complaint the new york times story that appeared on just ember twentieth nine hundred ninety nine does name some of the tax payers and they may have gotten information about who to name by sitting in the hearing and by looking at that record but those of the hearing when we turned up to the the holidays in january that that he was going to issue a decision and requested that the parties brief the issue that is when i arrest conceded that i the issue if the taxpayer information is in the public record it is not part of the disclosure commission's it's not covered by that because it's the information is not disclosed by the i r s employee new defense had to be created it's because the judge very carefully trying to determine whether there with any other defense to whistleblower before shifting the burden to the agency to show by clear and convincing evidence that they would have taken all of these steps to ruin his career and his life but for the alleged use of the internet on the computer which was a very did then i'm a problem in his case but a widespread problem in the i r s where they had no written rules  guidelines and they put somebody into his planes that had bigger problems that was passing around pornographic disks that were i r s property to other employees so there is a lot of evidence of pretexts here that the judge could look at and if he w