for both in general and for mr miller pacifically for mr miller specifically he has a twenty plus year unblemished record with no discipline at all both with the secret service and with the department of homeland security it is uncontroverted that prior to the discipline in this case he had no discipline in his record at all for iraqi policemen levante we had a trial eleven first issue is whether the car factors the factors that apply when a court has determined that the agency has used the individual's protect disclosures as a factor a contributing factor in the discipline whether or not those factors are mandatory or permissive and even if permissive whether or not an agency can meet it burden under even a permissive standard we're the agency proffers no written policy that describes the transgression and the penalty comparative ors any custom in evidence that this kind of action they've taken in cases of individuals who were not whistleblowers similarly situated individuals it is our position here position taken and here's why i remember the procedural posture that we're in the agency has already been determined to have violated the law and that they are using a the person's protected activity in this case disclosures relating to whether or not security screeners were using appropriate procedures that are airports to protect the flying public from the weapons coming in through those screening procedures whether or not under the circumstances if an agency has been determined to use protective disclosure as a factor in the decision the standard for the agency is a high one and they needed it if they do not  have a written policy which they disseminate to employees they must demonstrate that they take similar actions if they cannot demonstrate that they take similar actions against non  whistleblowers they simply cannot meet this very high burden that's precisely what congress intended in writing the statute the way that they did to to provide a high standard of clear and convincing ever had it's a burden of proof on the government as this court has set out in car minatory factors three factors which this court has confirmed as recently as the chamber's decision in which case of the poor remanded the case back three factor test the first two you lose on pretty strong they had strong evidence they had little or no motive to punish mr miller and then the third ones is any evidence that the agency takes similar actions well if they have the evidence they proffer they don't course they don't have that or it's i respectfully disagree and let me tell you why on those two points first when you say strong evidence the agency proffered the fact that he had that mr miller had negligently unsecure s s i all right the there was no policy at all no written policy at all there's nothing in the joint appendix that provides the agency has provided a written policy in that regard remember this court's only important declaration in the greenspan case which was in two thousand and six eight disseminated policy that the agency had provided to employees isn't it pretty implicit that if you've invested a lot of time and effort in setting up a program and if somebody compromises that's reprehensible that is something for which you can be punished him is that need to do you have to write down every possible thing that somebody can do wrong in while in expense of what was it thirty five thousand dollars isn't that pretty clear to anyone do they need to have a written warning that that is somehow a problem yes the the here's the reason because without it what what happens is what have you say mr miller didn't know he was doing anything wrong no in fact the the evidence is that he had the operations planned properly secured so under that it was a an unintentional mistake yes it does first i was intrigued your question about whether it was reprehensible certainly was no intention involved here and second because it was negligent what  cost of himself said it was that it could have happened to anyone that is in the joint appendix where he states that this was simply an accident anyone that it happened to would have gotten the same problem  the evidence the uncontroverted evidence is that that individuals who lost s s i did not receive a penalty at all in fact there were two individuals that that came evidence was that trial that in fact i action is reviewed on the grounds on which the agency based the action when it was taken we have to look at the decision as it was written at that time so it was only the loss of of s s i and yes there was a significant  loss in those other two situations one was a computer with s s i that was lost the second was a camera taking pictures of various items that were attempted to be smuggled through through the screening process so i guess there was a significant loss in those situations remember to this to your second point about prevarication here in period of time you want to use it i'm just going to just respond to your one point remember that mr santana so there is no evidence in the record that the decision at at the time was based on anything but the loss of the s s and this issue relating to mr miller's trial or we are please the decision of the board that t s a proved by clear and convincing evidence that it would have temporarily taken away mr miller's team leader duties and proposed to suspend him whether or not he was a whistleblower is  factors are mandatory there's a confusion as to the word mandatory those factors must be considered by the board and it's a no one issue in this case because in fact that's exactly what the administrative judge said that he had to consider all three factors and he did consider that what isn't mandatory is that you have to satisfy all three of the core factors what it is is you have to prove the government has the burden of proving by clear and convincing evidence that it would have taken the same action in the absence of the whistleblowing it timothy that has to be proven by all three by combination three factors as in this case there is no evidence as to similarly situated employees in the government must prove its burden through factors one and two which is exactly what happened in this case if it were otherwise you run a points out the first time an action happened the government would always lose the case it would always be it would be impossible to prove that they would have taken the same action absent the whistleblowing because there will never be a similarly situated employee there is no convincing argument here that there is a similarly situated employee or two employees that the that that's demonstrably wrong as demonstrated by this court's decision in eunice eunice is really exactly this case in eunice the this court concluded there was strong evidence on the first two factors and as to the third factor there was no evidence of similarly situated employees in this court for the work that the agency approved by clear and convincing evidence with respect to the specific facts concerning the two alleged computer please of the court is absolutely right that the first place that there's a distinction is that there is nothing comparable to the first and third specifications in this case there's nothing about the travel and there's nothing about the the misleading statements of the only  since this case is solely about the proposal it has to be considered because you have to look at whether the proposal is the personnel action for this case so you have to look at whether th that's right because they were actually two separate or m s p b actions in this case and this action is solely based on the proposal there was a separate action that went to the a j and to the b confusing dressed in the first footnote of the board's decision and also in the first footnote of our brief there were two separate personnel actions are two separate claims of whistleblowing brought in this case one was an allegation as to the whistle blowing claim the proposal and the second was an allegation as to the decision they went to the hearing that they were tried together there were two separate work decisions one on the proposal and one on the final decision the only one that's before the court now is on the proposal the one asked of the decision was not appeal to this court so the only action before the court right now is mr cost his proposal for fourteen days the being stolen is completely different from from losing something addition to the fact that the first and third specifications are involved with respect to the second employee the last camera first of all didn't involve thirty five thousand  involved four hundred dollars in addition to the evidence in this case and this is that joint appendix page four to five three three is that there was no s s i on camera the employee involved mr layman was very specific in his testimony and indicating that all of the s s i that would have been on the camera had been downloaded and at the time it was taken there was no s s i so those factors or are also distinguishing there are two defenses that are raised as to the travel and i want to dispose of them one is that supervisory approval wasn't required that is demonstrated by the record to be first mr a hospice testimony do with their department they were not the responsibility of the department so if for some reason the proposed changes to the s o b s the pieces were completely ridiculous and whoever wrote them was blameworthy would have any reflection on mr cost at all mr acosta wanted was to make sure that there was a something we had grown through meat through the suit the line which may command before it went up there was no it temporarily to to change the process in terms of the information getting to those people who were betting them and also in their reply brief they talk on the motive to retaliate about it's improper to consider the fact of whether or not the substance of the protective disclosures caused a motive to retaliate other two cases that make it clear collegial case which says that there has to be a connection in the motive to retaliate to the whistle blowing move to retaliate for whistle blowing and also in the court case itself if you look at the facts of koraro and the analysis of this court in core it's very clear that the substance of the disclosures is the key to the to retaliate and what this court didn't cross is went through the substance of judge of course disclosures in that case and it looked at the new haven employees and and the court concluded that yes they had moved to retaliate but that didn't matter because  to simply say that the motive to retaliate has to be connected to the whistle blowing and i'm responding to the reply brief in which they said that the administrative judge erred in saying that the supervisors didn't have a motive to retaliate because the substance they don't really care much about the protect the substance of the protective disclosures that's all coming forth and that in fact in clara's court went through and said the fact that decision makers were not the subject of just cards protect disclosures was relevant to determining that they did not have in the retaliated to be the best there is it's appropriate to look at the substance of the protective disclosures to see whether they give the decision makers a move to retaliate which is exactly what the administr to retaliate we need look no further than joint appendix eight zero eight seven is the e mail that he sends to mr miller immediately after mr costin finds out that mr miller has been circumventing him forty two to fifty one through fifty two this is in our brief it pages twenty four twenty five question mr costin and it is your position that even if mr miller had believed that he had found had believed that he had found something that evidence of great potential danger in the s o p s he was not to break the chain of command correct answer he had to follow chain of command yes question and it mr miller breaks the chain of command to communicate that he believes whatever grave dangers to the public you believe that the appropriate disciplines would include counseling correct answer correct dismissal correct answer depends yes could be suspension answer suspension yes question anything could be anything this goes right to the mind of mr cost that the person that is solely responsible for the meeting at the discipline in this case now remember that right the day before the day before the issue of the travel even comes up and remember mr miller the reason that he he's simply trying to get back with the other group leaders he's a group leader they are born the day before he believes that he should be on that travel schedule that's what this is all about he gets on the elevator with mr santana and he says mr santana quote this is that page a joint appendix eight zero eight eight i feel there is a potentially catastrophic policy flaw in the new s o p and i would like to send you an email regarding your concern mr walz who was mr kasich direct supervisor says get me the eth expletive out of here that elevator out when mr mr miller is raising his concerns there couldn't be clearer that it's of enemas on the part of the decision makers and then it at this is after the case has already motive of mr costin and even mr santana himself in may of two thousand and eight when he is looking at the decision that mr acosta has meted out this says that mr acosta motive in this case no written policy at all and no comparative or evidence by the agency that