on this deal to challenge is the ruling of the administrative law judge who determined that he did not make a protected disclosure under the  whistleblower protection act and to challenge the board's findings it two particular ways the judge held that because a rules regulations or policy actually occurred there could not have been a violation of the statute and therefore no protected disclosure and also the  put office we all know what we're talking about there correct have you found any cases that have addressed that kind of a situation where you had a job description as we do here and in addition to that on an ad h some kind of basis that you will the individual have been told we want you in addition to report to us in this way judge i have not been able to find anything in this context the only context that i have been able to find any cases relating to job description are the cases relating to the similarity of duties when we're talking about acting when an individual leaves one position and goes to another position there's always an issue of whether or not that person is in a probationary status or whether he can tack a tie or more from a prior prior job and in that context the issue of job description comes up all the time and i think the case law there basically says that although job descriptions are persuasive they're not the only indication of an agent students but him a job description  there is substantial evidence in the record calling from his two supervisors that he had certain extraordinary duties over and above his normal d e a duties for example he clearly was the the individual in the office who paid all the bills he ordered the supplies he was the individual in the office that was in charge of getting new office space and accommodating the new office space for d two thousand and one up in every evaluation here on or if an individual receives an outstanding evaluation within d n a there has to be a narrative at the end of the evaluation indicating the justification for the evaluation and in vatican two thousand and one he was referred to as the lead agent in view for now that was not part of the critical elements of the job but just by way of narrative indicating why he received an outstanding evaluation significant significantly or honor oh in two thousand and one there's that is it nation occur and there's a reason for that another agent did call up war but since he didn't know the ropes so to speak in the office for that year mr cobb was considered the lead agent but never again and subsequent evaluations was it ever required disclosure and mr mitchell what about the disclosure was made by during that meeting who requested that meeting meaning that they held or is not a special meeting that was called by one of the other forty judge i'm sorry i don't know the answer to that by that point mister cause i had already reported the difficulties to both mr mitchell and to mr also law i cannot tell you that that meeting was specifically health in relation to that it could just a been a normal luncheon meat but the issue of mr misconduct didn't come up at that meeting and as a result of two things happened mr kahn recommended his removal from the task force and during that meeting mr owes a lot made the decision to remove mr anas from the  doing that would have been to go through the chain of command in other words to start with mr mitchell and then mr mitchell with that go to mr all's law that's the way we normally go but there is no prohibition about against mr coffey raising it outside the chain of command to mr also law and indeed that appears to be what happened here mr mitchell and his testimony at the hearing indicated that he was actually unaware of some of these allegations that mr cobb was made to mr oza log in other words there were occasions where mr mitchell indicated that he was out of the loop so to speak on some of these things because when mr mitchell testified he thought that mister anis had been removed from the task force because he started up well all with mr cock in the work plus mr also walk however was aware that ground that he had not in the ages you made protected disclosure he did not address the issue of whether the agency had who by clear and convincing evidence that in the presence of a protected disclosure would question in the course of the hearing yes yes at length and there were witnesses that will call solely for that issue when i was was there was there any kind of the pretrial order or something we have a we have a hearing regulations judge i i believe if i'm not mistaken that the the agency did put it in the record in which case it would be in the record but i couldn't tell you exactly where it was government i don't i wouldn't necessarily read the conclusion it's going to be on that i think we agreed on well the violation at the end but at the hearing the the agency clearly did not agree that it was an actual violation in other words their position was that because mr karr intervened there was no actual violation of any and the issue would beat whether or not this individual could go out and  procure drugs without being established as a confidential source first there was no doubt that it was not established as a source and there was no doubt it did take drugs now under normal circumstances we all agreed that that would be a violation of a plane that was not a violation of the curator because they believed that he was designated as a confidential source for the local sheriff's office and therefore  violate any rules and regulations of da in fact it turned out he was not register as a confidential source with the sheriff's office either because he had never gotten the authorization from the state parole or probation authorities to be used as a c s guy and just been released from prison and was not permitted to associate with criminals so he needed a waiver for probation that never occurred well happened was after but he was never as i understand it never registered as an informant for either e a who are the local sheriff's office it is clear that the a j thought the that he was because that's why he said that there was no violation in fact there was a violation i believe for all sorts of reasons or off first let me hstanding the fact that he had obtained the drugs without authorization he expected to pay for those drugs and that's what started the product he came in with the drugs to d e c a to the d a s office and said here's the drugs pay for mr khan said we can't do that he's not register we can't do it after the fact so after that the share as the rise of the payment but he was never registered as a c s for even you for county and couldn't have been because they never had the time to get the authorization from the parole authorities to let the guy do wit eyes your honour's i think it's important to go back to the hoffman case all of those normal duties issue i think we've come a long way from what hoffman says where employees normal normal duties are or should be expanded by a supervisor or he's given additional duties and i would just cite this court to the fields case to quote from that case it is part of feels normal duties to participate in internal investigations when necessary and the ad hoc reporting channels set up during an internal audit become the normal channels of field employment for the for those purposes in other words in fields there was there there was a situation  was instructed to draft a particular memo there wasn't anything in the fields opinion that i can recall where the court said that that was where his his due the duties of his position specifically refer to prepare a memo of this sort but the employee was instructed by a supervisors that of change are going to be made at any turn by the supervisor of wells and it's in addition to to what the what the duties that are listed in the position description are now here in this case in addition government and i told my employees i want you to go out and watch my car and that's not part of a position which grips and i can amend their position description in any manner and any form of i want no depends on the facts of a given case in the fields case it was in the supervisor instrument instructing an employee to draft a particular memorandum summarizing events that occur so it obviously still relates to their normal duties it was just serving as the lead agent in that office and part of his assignment was to report to mr mitchell on a daily or near daily basis regarding the office operational information that was coming out of that office that that was the discussions that mr rose what kind of mr khan were still part of mr khan's normal duties that he expected mr khan to come to him in this situation and talk with him regarding regarding what happened with signing up his confidential page seventy four of the appendix plus mr ose walker also testified that he was already aware of what had happened that he had had discussions already with mr mitchell and that's a page a seventy nine and then although i think later he does say well i also heard some of this from his from mr kahn directly i'm not sure if he says directly or not i think he said he heard from from both but what was important also that mr khan and mr mitchell said testify that he could not specifically remember if in this instance he had discussions with mr rose like but that he probably did because that's probably what he would have done in a situation like this that's a page two forty one here which is akin to what happened in fields where the employee was told to prepare a memo explaining what happened give us a factual summary and that's that becomes part of your normal duties moreover the fact that mr o's black said that to mr did get that you would say we should remain in the administrative judge for him to make a ruling based on the existing record that's right there well new evidence just existing record that's right there was tested point based on the existing record now in your in your brief though you do or do you say that the government presented a clear and agency below presented clear and convincing evidence that it would have taken the b j looks at the record it may come back up here again it calmly and the government would appeal with the government one conduct you know here we are as a potential matter based on the fact that there's no new evidence in the command isn't it makes sense for this court to look at that issue well actually we allow the district judge to reach to reach an issue first that being said we certainly did in our brief present considerable evidence on that issue on the clear and convincing issue  if you look at what mr khan seemed to argue was that well because his disclosure because the government conceded at the hearing that his disclosure was a contributing factor to the decision to transfer him that clues us from demonstrating by clear and convincing evidence that he would've been transferred anyway and our point is simply what those are two separate analyses and if you look at the timeline here the series of events mr thomas transfer three years after he had his conversations in mr mitchell mr oza life given that long timeline the numerous intervening facts fact that the relationship between mr on the u s attorney's office and the sheriff's office deteriorated over time this should but it does seem it does seem that the trigger w the agency might be able to show that it would have found out this information from another source anyway in other words that there would have been disclosure from someone else and so for that reason they weren't admitting knew there were no the decision on that issue really focused on the testimony of witnesses and the fact that the conversations and i think that there's a factual dispute on that issue but the mystery judge credited the testimony of the witnesses and documentary evidence and focused on the fact that there really mr mr commenting was having these discussions with mr mitchell he was not in fact disclosing any violation the nature of the disclosures the conversations were mr innes wants to sign up this confidential source is there a way that we can make this happen under deep policy can we sign him up there was a lot of back and forth on that and ultimately the determine that know would not be a good thing for us to sign up this cont source would have to be approved at a higher level it's not something we want to do but the discussions were not oh we have a violation of law here or even a violation of policy what do we make of the you know me i think i think that's i think that's headed off topic and we he stepped forward and prevented something going off the track and if if you look at the read case which is the case that we cited our brief read case is the case supervisor to violate a policy and the employee went to another official disclosed it and the courts said well that you know that falls within the whistle whistleblower statute because we want to encourage employees to disclose information like that just because to occur here there was no such imminent violation but secondly what's important read is that is what this court said that the parameters that the that this court's created this court said in holding th disclosure of an impending action can qualify under the act we do not intend to convey the idea that any mere thought suggestion or discussion of an action that someone might consider to be a violation of law regulations or justification for a whistleblower complaint discussion among employees and supervisors concerning various possible courses of action is healthy and normal in any organization it may in fact void a violation and if you look at the ministry of justice holding what he said is that here in this case mr condit mr mitchell we're not just we're not discussing but have violations or even imminent potential violation they were discussing can we sign up the source is or way we can make this happen under our normal functioning example of the business of the office that's right so for that reason as violation that would be a different case obviously from arson here so hypothetically let's let's let's assume for the moment that there was action to try to comply with the regulations subsequent to employee should first let's see if we can correct the problem but the problem was not corrected and then the employee reported the uncorrected problem is that become a disclosure  in other words if it was about to happen and if it happened that way then you know it was reported at that point not about to happen but it happened yes and that would be a shame would not be disclosed but again that's not our case it's on our case violation it was can we sign him up i don't know the answer to that mr mitchell let's look into it let's figure out can we actually do this they spent time looking into the policies and and i realize i'm past my time but there was a question about it paul you have four nine and just emphasize what is it a one one four nine is where they begin just emphasize of course it is the mr khan's burden to demonstrate violation of any reason t days the first couple of pages talk about documenting a confidential source in this case we never got to that point because determined it was going to sign him off but what's interesting is that a page  looking page one one five two and this gets to the question of the two hats issue in other words we have a chance for mr ennis who was he was a member of the task force but he was also a sheriff's employee at the bottom of one operation led by the parent agency the requirements of this division order shall not apply so this or although the i do want to know disorder is dated after the conversations mr mitchell had with mr khan this were contemplates a situation like here where m process matter do you think in in future cases mr korea where we have a situation where it's been determined the board has and this is not i'm just throwing this out as a question it's not really  criticism of either you or mr rauf but or the agency counsel below or mr orcutt in it as a general matter do you think in a situation like this where a case is before the board for a hearing on the merits and where the a j hears testimony on whether there was a protected disclosure and he also receives evidence on the question of whether there was clear and convincing evidence apart from that the agency actually i mean it it seems to me that just as a process and that are its best in the case like that that even if the agency as happened here rules in favor of the agency that he or she nevertheless also make a finding with respect to the clear and convincing point so that we don't find ourselves possibly in the situation we have here where if we were not to affirm it might have to be sent back i where the issue of causal connection which is usually the printed issue in these cases these whistleblowing cases was actually stipulated to by the agency in other words they stipulated that there was a caus connection between the transfer and the the whistle law in fact this is unlike any other case that i've seen there are cases where close a connection has been found but the board has also found that the agency has met their clear and convincing burke but those are cases where there is also a disciplinary issue involved or performance issues involved in other words there has to be a reason over and above the whistleblowing why the person was either removed or transfer or whatever here there is no possible reason because there is no discipline the o or investigation which took about a year completely clear mr karr of the wrong doing the agency repeatedly and here in conceded number one that there was no discipline on his part no wrongdoing no giggle impairment on his part at all as a matter of fact the agency took the position that the u s attorney's claim that he had a giggle problem was false and protection they took that position at th hearing and they disagreed their own chief counsel's office and or people are disagreed that there was a giggle real problem as a matter of fact agency witnesses testified that they were blackmailed by the s attorney's office to transfer mr kahn out of the agency so in a situation where you do not have a disciplinary issue you don't have a performance issues the only thing that the agency was there you mention the settlement there was a settlement that was attempted to be brokered with everybody involved before the litigation even came about the u s attorney's office said we want out of a was going to accommodate mr karr and sent him where he wanted to go outside of south carolina to one of the offices in north carolina where he where he was raised d j agreed to do there then came a point where the united states attorney's office said we're not going to go along with that he's got to go somewhere else if he goes to north carolina we're going to take the position he's good leo and fair and we're going to go to the u s attorney's office there and poison the well there as well so consequently the settlement that tried to be reached among the parties never got off the ground because the u s attorney's office in south carolina said they wouldn't abide by it going to north carolina either so consequently it was set with lanta and that's why we have to litigat