to terminate his benefits for failure to to attend vocational rehabilitation training can i just switch gears a little i understand this the issue of basis upon which to avoid this case yes for someone for and i send letters to both of them complaining about how they've handled my proceedings and then something happens to i get a whistleblower case against them know that the whistleblower protection in this case relates to the fact that he had the he was being in minister benefits through the office worker compensation program you know this is not an area of that i normally practice and but  that distributes benefits or has any then that's their job that any citizen who's not an employee of that agency or even any other federal agency can file a whistleblower i mean that is my understanding i mean rendered him incapable of working and then he began since that injury occurred while he was working as a government employee but he was approved for benefits and that continued without him so he's a beneficiary but not an employee would he was an employee cases with i think virtually no exceptions have been cases in which the person was either an employee or an applicant for employment understandably because that's in the statute you seems to me you're suggesting that someone suppose i am in the position of judge pro choice person who has a complaint with the social security administration it so happens that i was employed let's say by  government forty years ago having nothing to do with social security i just i was i was an employee am i entitled to relief because i was an employee way back then or where somebody who was never employed by the federal government is not entirely if i can't believe that's the way the statute works why i don't actually think that that's a reasonable comparison to this commission honorable not in this case but i'm going to what the statute seems to require because if the statute only requires that you at some point have been an employee of the government then it's much broader than i've ever understood why i think that is i think that is the way that the statute is supposed to apply so in my case having worked one summer for the for the federal government of your government work if you if you are in this particular case mr kerrigan's injury occurred while to government employee the reason this means that just went to analyze him would penalize him for the fact that he was injured if you was a continual employee would not have his part of the spine removed then she would be able to claim whistleblower protection but because his injury while working as a government employee rendered him in evil to work that comes under a personnel left and you know i mean in the statute you wanna yeah i mean my understanding is that that section twenty three o two is talking about an agency taking a personal action and that's exactly what happened here  he was taking an action against mr kerrigan and the the agency action related to the administration of his benefits for the injury that he encouraged while working as a government employee so i it seems to me that it seems to me that this sort of the idea that as i as i mentioned before the idea of this being discussed here would penalize mr kerrigan for the fact that he was injured so he would she would she would basically the fact that his government it would work to his detriment when ultimate we you know he determines that the form that was used to deny his initial selection of physician was destroyed and it would work against him despite the fact that the only reason he is a former employee is as a result of his government employment so it i would argue that it's far different than the situation of somebody who works for a year and then is it you know was getting social security later there's a direct nexus here between his government employment his his work as a carpenter for the apartment of navy and injury which is the which is the reason they feel pain benefits when i turn you to justify going forward on the question of the nexus between the disclosure and the personal action is taken now focusing as we must not on the points you have made in your brief where you have gone through the documents and you found a document that has a date stamp on it that it was struck looked like it was the same date that something important in the event occurred but just looking at the documents that were presented to the administrative judge in the board is just what we have to limit ourselves to what in those documents is sufficient to establish a non frivolous camp but he did explicitly state for his belief that the fraud and abuse resulted in terminations about well everyone says that that's their belief but the question is what evidence is there to support that belief a connection between the term a nation of his benefits which occurred i guess in march of two thousand and two and his disclosures which i guess who are most at least in the labor department were in the november twenty first two thousand and one letter that's correct ok so i so i think when i sit down here former rebuttal i'll go through the appendix again so i can give you you know some more specific page numbers but she did allege throughout the process that the action was taken against him because he made the protected disclosures and as i understand the law the timing of it creates an inference of causation and that's how out based based  in both parties priests i think the parties agree well this is a short time frame there's an inference of causation on not sure timing is sufficient in of itself and i don't know i mean i guess it's one of the inferences you could draw but there are other there's another rationale to explain the timing it's not like nothing happened in ten years he never had any contact and then suddenly the week after he sent the letter they do it there are if you look at the record and the various things that were going on medical respectively talking about a motion to dismiss standard so mr kerrigan is entitled to all inferences and it and it and it certainly is reasonable that if you were not referred to vocational training and eat your dispute and then the d v d office see that's not putting it before the board in any meaningful way he didn't call attention to the fact of the so you'd have to look at the motion to seal poor through the forty two pages of quite irrelevant stuff find that document and then look down the bottom and see that that document head a stamp on it which turns out to have been the same day that something in this progression of events leading to his determination of these payments occurred i do  these prostate litigants through a hypertechnical lens if they have presented the facts and the evidence of the evidence is in the record from wins from which to reasonable inference can be drawn particularly on a jurisdictional motion we're talking about presented with that motion to seal after having been presented with a different response to the jurisdictional statement which didn't include any of that material even a careful lawyer such as yourself i am confident quite confident would not have pored through that motion to seal and found that document with that stamp there and said aha let's see if that date lines up with any of the other dates that's that's really going beyond hypertechnical seems to me either when this case your honor that that issue didn't didn't sort of arise i think it's sort of the norm course in which it might have there was a first in his initial submission keeping initial rejection because he was not a they said no jurisdiction because you're there's this footnote in the footnote and says welder's this you know other type of issue is right but that was not really that was not when we need that was not i think an issue that was in mr karen's mind well it should have been because when the board sends out and they send out the form in this case when they said i sent out a form on jurisdiction they will lay out for whistleblowers exactly what after show i read the form that he got it's real clear i mean it's one of the better written forms i have to say that you see in the federal government as just as clearly as possible it says you have to tell us what evidence you have of a non frivolous allegation of a nexus between the event and the disclosure and employee in or an applicant for a covered position in an agency so how does this cover mr kerik at well i i mean i guess mr kerrigan was treated here you know as i said as as a government  injury and incident form was the first incident a form was created and then he was a recipient of benefits as a as a employee who had been injured on the job when you know his ca sixteen form was destroyed so so he he the the the document which led to the illegal conduct in that that was generated when he was still in the process of be treated differently because of the circumstances of his injury it would seem pat me on fair for some let's say mr kerrigan lost his benefits because of you know racial or ethnic discrimination i mean to say that he couldn't thought he had a he thought he had national district filed in federal court pennsylvania but that worked its way through the courts the court said we don't have jurisdiction over this you have to go to events so then once this court proceedings are all complete the action is the same then he filed an action against the doctor who who reviewed his file but never actually spoke to him and then he said he felt that action that was also dismissed and then he went to the occurred after his plane was terminated what about the question of whether the employer employee relationship is addressed by the whistleblower protection act has to be an employee of the employer who has acted against the employees do you think here we've got an employee of the department of defense who is raising a whistle blowing action against the department of labor do you think that falls within that you can bring an employee can bring a claim against an agency other than the one that employed him but there's some tension with that case and the city case and that's because one case and the board i think partially for that reason chose not to resolve this issue in this fashion and that's live mine that there's an enormous distinction between somebody who's a detail leader because they're an employee of sorts i mean a lot of benefits unearthed to me when you take your benefit package with you when you go on detail to another my understanding is the board speaks for that the agency and not the administrative judge and therefore we're reviewing the board's determination not that of the administrative judge and that's true but there argument that's something that the court can do and the board here although it vacated that aspect of the decision it did not actually reverse it or offer any analysis to the contrary it simply offered an alternative legal holding board would agree that the timing in this case and suspicious however the other other elements were not established because there was no specific non frivolous allegation that anybody who proposed this action who took this action had any idea that he had made disclosure evidence could have been presented or allegations could have been made well there's two there's a threshold of jurisdiction which is where he got hung up and had he actually made an unfair with allegation he would have established jurisdiction but entitle to hearing been entitled to discovery on the issues that were going to be addressed at his hearing so if he had offered at asians that were non frivolous he would have had discovery against the agency in and he could have sent you give me all your documents religious issue and perhaps something would have come out or or would not have  come out it's an example of something that would be annoying frivolous allegation that he could have provided here he could have explicitly said not by implication not by inference but explicitly said i made these claims to the  turned our attention to a one ninety and one ninety one at the sworn declaration by mr kerry then and so i'm just kind of looking at it carefully for the first time but it seems as if the first paragraph from reminding one does  you might believe that but if you read in the context of his rather voluminous and confused filings he is constantly accusing everybody of a fraud and there's a difference in the fraud which she accuses him in ministering his claim and the fraud doctor he was not allowed to choose this doctor or they lost his form it's basically the claim that he actually done went and rip made whistleblower disclosures on which is that they destroyed evidence falsified i feel evidence all of that i  think as i read it and that's what he's talking about in this paragraph and he may be saying that he told those people that they had committed fraud but that's not the same thing as telling the people that he reported their misconduct to another entity it may be he could've made it was simpler claim on th but he didn't call the whistleblower claim here ticklish the border is that he reported misconduct to the oh i g s of to agency ul and unity and because he did that his benefits were terminated but the missing link is that he never benefits because they said we don't like you because of your race and that's why we're terminating your benefit well that ordinarily probably would not be in the first year section anyway you might be able to go to the e e o c on that but i would i would assume that you are also for clues that sort of review by an agency you know possibly he could get into district court on the constitutional claim and i think in one of his district court cases the court actually noted that the statute not withstanding the court might have jurisdiction to hear some sort of plaintiff there was a real  due process claim but that he hadn't shown it and that was the reason that they were denying it and that was one of the third circuit decisions and i think it is referenced in the board's opinion an order just a court may have that power but the board does not  where the issue is not the issue is not the correctness of the denial it is the well lation chip between the disclosure and the denial the distinction is not in my or there is a separate action separate from the cap proceedings on which the board could rule the agency is employing agency took a separate action against the petitioner and that is what the board is going on there is nothing like that here  whistleblower protection point if the i guess this goes to the question of whether this clear and convincing evidence that the action would have been taken anyway but at least at the initial stage the whistleblower protection claim doesn't the claimant doesn't have to show that he would have been entitled to the benefit that only comes up as part of the affirmative defense of the right that's my question and that's why i'm wondering why it is that that is necessarily tied the end with his whistleblowing protection action in other words if he made a false statement on his  action firing him for making a false statement well if his if his implying agency fired him for making a false statement which is what happened myron miller no that would not be right of course that's my that's not what happened here i understand but but the question is do you why  that not like this case since we've agreed that the question of whether he would have gotten a stand if it's anyway or not is not part of the his affirmative case it comes into the question question of the extent to which in order to decide the whistleblower protection act question you really have to go to the merits of the underlying each and see decision and if you don't then i guess minor miller say that they would have taken it in any event or other and i think the board can't even reach that issue i think that you know that that's why i'm saying that they can't because that would necessarily be part and parcel of what they would have to get to yes they were to take this case i mean if i suppose if you could carve out some way to address was a blowing in isolation and find that there was possible retaliation but the not address whether the same ash would have been taken or not offer any remedy and basically do nothing other than make a finding that there may have been was a large television i guess the  judge starr was eluding even when we're talking about them establishing that they wouldn't would have taken it anyway that's distinct from whether they get the right i mean they could have a paper trail that said we had these doctors letters  we told him and so we've proven that that wouldn't go to whether they did the right thing or whether something they did was improper or wouldn't you say was given reasoning as a whole and the statute says the action i mean in allowing or denying a payment and i think any any reasoning that they rely on mathematical or otherwise is part of that agency i guess the agency here is the department of labor is going to come in and as they can and present an affirmative defense which happens in every case that say no we would have taken this action anyway so this action being we would have terminated his claim to benefits so that becomes part and parcel of this case with the void evaluating whether or not they've established so their satisfaction that they would have taken the action  don't know that i do your honor because because the the the that would that seems like kind that what was just said seems contrary as i understand minor to be minor they did they did talk about some of the same facts that were in the kerrigan the right to bring a w p a claim and the claim is not the claim is not you can't terminate somebody for failing to attend the occasional training the claim is an adverse action was taken against mr dead certainty the way these things play out is whether or not the case against the case of the agency for terminating his benefits was so clear that and surely would have come out the same way without regard to whatever statements he made that question becomes foremost in ninety eight percent of the whistleblower protection act cases that go that far and that is a question which would require the emissivity i guess to determine whether the board got it right or not but not i don't think so your honor because because the issue that they would be presenting what they would be saying as i understand it i they would be saying we would have referred him to vocational training even had he not meet those criteria only you as a president would have had to explain away the fact that the referral which wasn't made for all these years was made  his claim is that an adverse action was taken against right to management so what the so what the what of department of labor would have to show is that they would have taken the adverse action and what is the adverse at the adverse action is the referral to vocational training just which could have occurred any time but only occur so they refer someone of a cation rehabilitation has got part of their spine moved and they refer that person to training when they receive these allegations of no element of the claim that is not an element of the claim it's being made the element is that there was no retaliatory action that was not considered by the so so again the issue that this is an entirely separate proceeding it's just like we employment not really a restatement of benefits right in those cases i'm not positive sitting here i thought one of those cases was benefits and i think they're in those cases it the issue that the court's holding is based on the idea that it's are separate proceeding that there is there is one proceeding whose jurisdiction lies within the agency or sitting on the minds of the earners that's in his act with anything with the argument i want to let you know th ok but if i have any trouble at all with your argument it's that those cases are different because the red lady that you would see here seems very much like what we were this final inconclusive for all purpose position that the m s b is asking for here they had never say that if the board says it has jurisdiction that it necessarily has jurisdiction to provide relief and so it's appropriate for us to look at the nature of relief that would unearth here right i think that's an end when your answer a few minutes ago all they have authority they could provide any kind of what kind of relief that they provide well there's other than saying well but that the question so that issue of the rescission of occasional that that again that is not something that that is not something that was considered by each that was not a question or an issue that was before the eco is it's not th