and i greatly appreciate the opportunity to present oral argument to you today in my time i'd like to focus on two principle issues first how the department of health and human services got the law or wrong on the contributing factor causation standard under our a section fifteen fifty three and second how h h s is ignoring large portions of evidence especially countervailing evidence in the record in addressing whether the defendant h m s met its clear and convincing evidence burden of proof cannot survive substantial evidence review on the issue of contributing factor causation it's clear that h h s got one thing right it confirmed that mr fry had raised with senior management his concerns about what he viewed to be and fraud on the part of h m s affecting billions of medicaid dollars senior management's knowledge of mr foss whistleblowing activities is not in question unfortunately however in a claim process that should have taken no more than thirteen months but that h h s ended up dragging on for over four years h h s got little else right the contributing factor standard which case law tells us is broad and for giving him a chess simply apply the wrong law it was evident from the report that they issued that h s was confused about the law first of all because they stated a four element test for proving a retaliation case under on a test that does apply under several other federal whistleblower statutes but the test under our is different it's a three element test and second h h s revealed their confusion by stating at least two times in the report that even though mr fry had proved knowledge of his whistleblowing activities by the company officials responsible for taking reprisals against him he was that he was also required to show proximity in time between his disclosures and the herrera case cited in our briefs indicated that proving either knowledge or proximity in time based on the wording of the statute is sufficient to establish the contributing factor standard in that case the claima t had the potential to prove proximity in time but had not proved knowledge and the court there said that knowledge was acceptable but not necessary evidence in other words establishing one of the two alter was sufficient to demonstrate causation in our case the flipside should be true proximity in time is acceptable but not necessary evidence and because we clearly established the other alternative for certain that is knowledge we have established that the contributing factor we satisfy that burden of proof incidentally is our brace for now we believe we also showed proximity in  the other in order to prove the claim now the government in fact advocated the same argument that we're advocating today in the chippewa creech ribe case before the ninth circuit last year that showing either knowledge or proximity in time was sufficient to establish a contributing factor under our fifteen fifty three but now today the government is switch sides and they're arguing to the contrary that this type of approach of applying the wrong statutory standard of the wrong statutory language in order to squelch a whistleblower and shield the defendant employer was just the sort of thing that was criticized by none other than former senator claire mccaskill who was the author of our a fifteen fifty three and in the context of a defense department was a war statute she stated this should not about protecting defendants it's about protecting whistleblowers moving on to my point about substantial evidence as we know once a whistleblower establishes causation under aura under the contributing factor standard as we believe we've done it's then up to the defendant employer to prove by clear and convincing evidence that it would have taken the same retaliatory actions even if the defendant i'm sorry even if the claimant were not a whistleblower and we know that this is an intentional a high burden  in between a preponderance of the evidence and proof beyond a reasonable doubt now a multibillion dollar company like h m s is probably sophisticated enough not to have a smoking gun memo in its file saying they claimed was very critical of his performance there were also some officers of the company that criticize and others that praised him but the two thousand and seven performance review if you go back and look at it it's really not all that bad  in fact in not a single category was he rated fails to meet expectations in fact he was rated as an seeding expectations are meeting expectations in most of the categories i thought i read that he was i first position well your honor i believe what it said is that his supervisor david dawson considered him to be the lowest number three out of the three regional vice presidents that he supervised there were many regional vice presidents in the company and basically how regional vice presidents were rated was based on the revenues when mr fry first started with the company and had a number of territories his revenues were  he was exceeding all revenue projections when the company started reducing his territories once he started raising concerns within the company his his revenues that he was responsible for went down and so that's why mr dawson i believe that he was three out of three because his revenues at that point were the lowest of those three what you just said the company had problems they reduced his area so  included reducing its territory and one by little by little one by one they took away his territory they did a number of other things to retaliate against him that ultimately culminated in his terminations and judg ment and you also asked about the reduction in force the that is what the company started to claim about eighteen months after he was terminated and as a matter of fact even at the time he was terminated there was no mention of performance issues at the time he was terminated he was told oh we're just trying to save money at the time he was terminated however the company was still hiring other senior officers and rehiring other senior officers and high salaries  with which they presented about eighteen months after he was terminated it covers employees of all different levels in all different departments and case law says that that kind of that kind of determination of people  is not consistent with a reduction in force and in fact it happened over a two year period of time is not something that happened in some more defined shorter period and we presented  significant evidence such as those factors and others to h h s to challenge the assertion that the terminations did or were a reduction in force and that's one of the problems that we have with the h h s decision is that the record reflects that they gave almost no consideration to those issues and that's really odd in lot of the fact that after we presented that information the chief h h s i watching investigator e mailed us to say i mr fry has raised important points and i need to follow up with with meet with the h m s witnesses on these issues he had a number of interviews with him as witnesses after that including reinterview of the h r chief tracy south but the record reflects that he didn't ask any questions to follow up on those issues with one small exception he did ask miss south why mr fry was terminated on a tuesday which was uncharacteristic of an r i f instead of at the end of a week on a friday or at the end of a paper and she was unable to answer the question so we assert that the claim that his company's explanations for his terminations changed over time and there's very little paper trail to establish that there was an r i f there was a case we started in our brief that says normally you would expect there to be a paper trail you'd expect  memos and plans about our i f and there was nothing of any sort that the company produced or all of that is is reflected in the record and so analysis of the ferocity of their statements versus those of mr fry there is no attempt to try to address the conflicting information that's in the record in the conflicting claims that are in the record and so very that the report leaves this court with no opportunity to assess whether whether h h s considered all the relevant facts and whether they considered even countervailing evidence and perhaps decided if they decided ok we've this this side is more is more credible than the other they didn't say that we don't know if they went through that sort of assessment and so that in the case law says in those situations the agency action cannot survive substantial evidence review and in those situations the court should remand or should vacate the decision and yes for consideration for reconsideration following the appropriate statutory guidelines and and considering all the relevant facts not just those that are that are favorable to the company but all the relevant facts and make it and make a fully informed and reasoned decision as the whittemore case cited in our brief pointed out if it's important to for agencies and courts to protect the interests of whistleblowers because whistleblowers perform an important public service in this case mr fry was calling out a company for what he believed to be billions of dollars of convincing evidence standard they also mention that a whistleblower is usually at a disadvantage because the company holds all the cards in terms of having all the evidence and documentation and in particular mr  documentation proving his claims because he was ushered out when he was terminated and so we urge the court to further the interest of a whistleblower here and not let h h  in its mis handling we believe in this case throw cold water on future whistleblowers because whistleblowers play in such an important role in calling out fraud that that cost taxpayer dollars four that the government runners that agency determined to properly dismiss mr fry's whistleblower complaint for two independent reasons first the agency concluded that he had not satisfied his burden to show a causal connection between his whistleblowing activity and the adverse employment activity and the agency also found that the company had shown that it would  terminated him through a reduction in force in the absence of his whistleblowing activity the petitioner asserts that the agency applied the improper and improper legal standard and somehow held  him to show circumstantial evidence through multiple through multiple avenues and the agency's decision and the o i d report confirm that that's not the case that the agency acknowledged that mr fry had shown that the employer's had knowledge of his whistleblowing activity but that that knowledge was so outdated that it did not satisfy his burden to show that there was a connection between that activity  converse of his argument would would would demonstrate the correctness of the agency's decision that he would suggest that any evidence of knowledge no matter how outdated no matter any other circumstances would suffice to to meet his burden activity that was established was his terminations he put various allegations of other adverse employment activities before the agency in the agency found those to be unsupported in the record and didn't were continuous reporting or valuation of his whistleblowing activity i believe you continue to pursue that there is not evidence in the record that he was in fact with respect to one of the to whistle blowing that the agency sensibly and properly took into account mr fry's evidence of knowledge but found that it was an insufficient basis to satisfy his burden to show that that was a contributing factor in his much later terminations the agency also concluded it was a separate and independent basis for dismissing his his whistleblowing complaint that the employer had shown that they would have that it would have terminated which the agency's final determination were pot relied summarizes the available evidence both favorable and unfavorable and the agent agency credited the evidence that showed the consistent evidence that shows that he was terminated through a reduction in force and that he was selected for that reduction of force because of his relatively poor performance and for those reasons the agency sensibly determined that and re determined that he that his whistleblower complaint should be dismissed the petitioner suggests that the agency is somehow taking a different position than it did in the chippewa creed tribe and that simply not the case the agency acknowledges but the importance of whistleblowers but also the text and the purpose of the whistleblowing retaliation provision that that allocates the burden to the that is acknowledged in the agency's report but the agency found that that wasn't enough to carry the burden on these facts given the length of time that had that had taken place and it stands to reason if he had had a fifty year employment with an employer and had engaged in some we was all blowing activity on day one of his employment that that would not necessarily satisfy his burden to show a causal connection fry's terminations but but the agency credited the testimony the consistent testimony of testimonial evidence of company employees and and when that mr frank pointed out questions and raised questions about why he was selected or asserted aberrations in his treatment in the reduction of force the agency went back to company officials and asked questions about those and then was satisfied  with with the company's explanation at that  but the the agency's way ssion of the record and weighing of the evidence its credibility determinations and factual findings of course are reviewed deferentially under the administrative procedure act but in any event the agency conducted its its determination reasonably and we asked the court to dismiss the petition on the only way that mr fry can prevail is for this court to rewrite this statute and reweigh the evidence and because this court can do neither the petition must be denied let me start with his first issue  contributing factor no doubt aware of the narrowness of this court's review mr fry has framed just first issue purely as a legal one he claims that the agency misinterpreted the statute respect fully i would submit that this court's decision in pacific lumber conclusively for closes mr fry's interpretation the statute in that case interpreted a materially indistinguishable that like the relevant part it provisions of the recovery act start it had the word including and a list of three provisions in that statue separated by the term or this court held  the non exhaustive nature of the three subsections is inconsistent with treating them as compartmentalize alternatives close quote satisfying just one quote is not necessarily close quote enough that's five eighty four afterward at two forty five the exact same thing is true here the plain statutory text says that circumstantial evidence may be used to prove contributing factor and that circumstantial evidence in turn may include knowledge or temporal proximity while mr flop fries reply brief repeatedly refers to this as an either or choice the word either appears nowhere in this part of the statute further confirming that it would have to be rewritten to make knowledge categorically sufficient in all cases even if twenty or thirty years passed between the disclosure and the adverse action so because mr fry's interpretation would require this court to overrule pacific lumber rewrite the statute and would lead to absurd result it must be rejected in the petition has to be denied moving on to his second issue again we don't think the court gets to the second issue because we think the petition should be denied because mr fry failed to fact finder waived that evidence but it does not matter if he can point to some other evidence that would confirm his version of events we're not here on summary judgment were all he would need to do is point to a dispute in material facts the agency has already found the facts and this court's narrow role is to determine whether it's finding was arbitrary and capricious and let me just point to and judge owen in terms of your question about contemporaneous evidence all of mr fry's supervisors in interviews agreed that he was operationally inefficient that's document one fifteen pages thirteen through twenty one his two thousand and seven review confirms that these concerns weren't posed talk rationalisations and that's document fifty five attachment for mr fry's supervisor mr dawson who selected him for the rest said it made sense to choose mr fry because he was the lowest performing of the three regional vice presidents that mr dawson supervised and it made the company more efficient to reorganize that's page sixteen through seventeen of doc one fifty and in terms of contemporaneous evidence joe and i would suggest there's that the h r screenshot states the reason for mr fry's trauma nation as a staff ssion that's document one fifteen page twenty two seven witnesses mel served seeing dawson vaughn glen and paran testified that mr mr fry was terminated pursuant to a ref that's doc one fifteen pages thirteen through twenty one one hundred seven others were terminated and i respectfully have to disagree with my friend mr harris it was actually less than a one year period pacifically with respect to operational efficiency and with respect to the two thousand review if you if you look if you look closely at that you'll note that mr fry received partially meets expectations which is the second lowest rating in seven categories one of which included operational efficiency cost management expense management so the two thousand and seven report i think is important because it shows that the it confirms the testimony of his later supervisors with respect to his operational inefficiency which is totally consistent with why he was selected for  and again mr fry's own supervisor one of his supervisors in this price was herself terminated pursuant to the ref after he was and that stop one fifteen page twenty and finally with respect  to mr fry being being terminated on a tuesday seventeen other employees who were terminated pursuant to the ref were also terminated not on a friday or at the end of the month and in fact eleven other employees who were terminated pursuant to the roof were fired just like mr fry was on a tuesday it would simply not correct to say that in the record when was asked about why he was terminated on a tuesday and not some other day she did not say there was you know it was not a practice she says didn't have an answer she said there was no reason on a tuesday when it all came down to business objective performance and so we would ask this court to deny the petition either for that reason or because mr fry failed to carry his burden of proving a contributing factor thank you thank you your honor counsel for h m s puts a lot of reliance on the pacific lumber case the pacific lumber case has nothing to do with meeting a burden of proof the pacific lumber case dealt with whether a plan in bankruptcy should be in that case said if you prove if the if the statute says you can prove either this or that and i'm not putting some either is my ward or is in the statute and so if you prove one or the other you does not matter how long it between the tang of that knowledge and the adverse employment action it's irrelevant and i'm saying to be ten fifteen twenty thirty years well that's right your honor of if you took it to is that then i'm sorry were you know if you took it to that you could certainly argue that but that's how the statute was written and in this case it was certainly not that long and it was for years it was not if  there were a number of people that age in mass that had a grudge against mr fry because of this whistle blowing activities grudges don't usually have a statute of limitations and so perhaps that's one reason why congress word of the statute in the way that it did i think that they were trying to still a court still should resolve all doubt in favor of a whistleblower rather than against the whistleblower but you also asked a judge or one about the when the interviews took place and there really was it's true that there really was no contemporaneous not human taishan opposing counsel mention that h r screenshot but we think that's you know anybody can put anything in that but but that's the why i don't recall that i think it was within a year or two but i don't recall i apologize  another another important thing to recognize in this case is the importance that opposing counsel and agent masson h h s put on a two thousand and seven performance review and by the way there were seven exceeds expectations and seven meets expectations in that review as well as seven partially meets expectations but it's a little ironic to go that far back in time when we told h h s there were more recent performance reviews they never