just on the briefs namely an appeal fifteen sixty two from two thousand and eight fraser vs highline or food and appeal thirty thirty one from two thousand and nine public versus office of personnel management we'll he thirty one year old part of the interior wildfire fighting employer employee dan backlit were so merrily dismissed upon last lack of jurisdiction grounds you can assume that we are pretty familiar with the facts and the issues perhaps you can proceed to the core of your argument to me for principle disclosures alleged to be protected disclosures were disqualified on legal grounds as being part of a grievance proceeding or part of an individual right of action proceeding and the other two in it for sensually rejected as being protected on the grounds that they were so vague it's simply not state  eight but i wonder if you can help me understand exactly what the district manager was told i couldn't find a document that recorded what the district manager was told by mr becker is there such a document there should be in the record your honor in that particular disclosure mr back towards the bill tell me what he said tell me where that document can be found that's what i'm having trouble i want to read the document myself not pretty serious problem of that's a close issue and that's one of the documents you're relying on is that record given the dates are places or specific allegations it does give specific allegation doesn't give dates places specific allegations yet what is the date the specific date of the alleged illegal her craft flying without proper qualifications and what's illegal about a cell phone call it is it is illegal to eat to guide wildfire operations with a cell phone call to what to guide to what other words to use a cell phone when you're in the air fighting wildfires a that it it's an allegation but it is devoid of any kind of substance any kind of factual underpinning there is no dates there's no specific places there are no addition to time and resources and that is trailer hookup but there were also other allegations that are part of the record with regard to waste and mismanagement at that time these were ma part of the record what documents are you referring to and where do we find these are headed appendix pages fifty to seventy nine to ninety to three nineteen  procedure of one by one because otherwise i don't feel we can make any progress with respect to the trail how does that allege a violation of law or a grossly work that the board found that you it was not shown to be unnecessary or unrelated to the mission of the the board made that finding it also ignored the fact that there were other allegations made a time to one of the time on the trail or why is that this is enough to say that it was a waste of money on a trailer hook up with no explanation of why it  the appendix here and in the record below because these allegations were made these disclosures protected disclosures were made to special agent work by mr beck who were much sure that they have spent on that well why not this is not merely a question of agency discretion or an issue and this was a hasty what's the basis of his thing the trailer wasn't necessary because they had plenty of office space right there this is this is and besides it was not it wasn't an allegation it was just made it sounds like a judgment call and why is a he right questioning the judgment call of the manager who knows what two thousand and three are reciting the record and a rebuttal i'll be a little more specific but i'd like to say that shortly after that in september of two thousand and three within two weeks of the time that there was going to be a hearing on the merits processed personnel action adverse to mr vest is associated with that even mr beck were religious this disclosure concerning what he was that these allegations were the basis for number one the treatment that he got there after placement in non's pace down to the status october twelfth before the end the firefighting season the not being returned to pay and duty status in march of two thousand and four those are contemporaneous with these other events very contemporaneous also the fact that that goes to whether the case could be proven at a standard so if you're honest frank yes however the words comment there was only with respect to the a j c standard concerning the contribution element of a non frivolous allegation your honor and what the board said is because the a j made a mistake with respect to that the board didn't consider that element at all other words the board did not conclude that there was a lack of jurisdiction because there was the absence of a non frivolous allegation with respect to de nova determination by those who were so even if there was an error by the administrative judge in its determination it really wouldn't affect this court's role here which is to review the board's decision this court has in its questioning of claimants counsel has very well identified the reasons that the board's decision was correct concerning the absence of a protected disclosure with respect to the disclosures concerning the  ninety eight flying act videos that are alleged by mr beck were from concerning mr edmunds and with respect to the disclosures to senator mccain's staff concerning the hunt contract there is an absence of any specificity inspector general well there's two allegations that are directed to that you want to one would be the trailer hookup was to the to the inspector general and the last one which only relates to t the backward two case which is a thousand and two before this case and that simply because the allegation occurred in spring of two thousand and five and the alleged retaliatory conduct in both  one which is the putting him in an off duty pay status and two thousand and three and then failing to return it to a duty status in two thousand and four and backward three which is the terminations of his life insurance and health insurance benefits or occurred before the alleged disclosures or only relates to that one incident and that your honor terms on the alleged disclosure being a no a two thousand and five letter which is contained in the joint appendix at page three to one and in this letter there clearly is one instance we have here where arguably there was a protected disclosure made because this is a letter a page of three to one that was to the office of inspector general from counsel for mr bakla and it's alleged there that there was fast testimony provided in the suppression hearing  against only relates to the back were to incident the problem with that document we do not contest in our brief this is a failure to make a non frivolous allegation of a protected this loader problem here is that this was never submitted to the office of special counsel therefore there was no exhaustion of administrative relevance so neither the document was submitted to the office special counsel were it doesn't have to be a document there could be an allegation submit it to the office of special mr thompson this day that there were multiple disclosures to the inspector general and zero to those three one of which dealt with the trailer issue but then there were others you seem to be saying yes but only one of them well that's right there's only one other there were other allegations made to the office of inspector general the problem is none of them were submitted to the different to the other less signori were any of them your honor alleged in the ira appeal and i would ask this court to carefully look at a member of documents in this cage in which the administrative judge who appeared to be somewhat frustrated with its inability to get it and around what allegations were made in the ira appeal issued an order and it said i'm concerned about jurisdiction tell me why there's jurisdiction in this case and pleading was filed by mr becker and that was an f three cases in fact where one pleading is at four six six to four seven zero and backward to the appeal in back the one and backward three and five and backward two and the allegation with respect to the search of the of his residence because of the criminal concerns was only in backward two because again that occurred after the the judge the i'm sorry the word determined in that were three that it was not submitted to the office of special counsel as an allegation at this stage we're talking about just the stage of non for less allegation to get you to eat here that's correct and so what kind of specificity is necessary if you're saying flying an actor aircraft without proper qualifications do you have to say what the qualifications were and say why why he didn't have them i mean what kind of specificity was the thinking here that you think would be sufficient in order to meet to constitute a non frivolous allegation of a project of the scrutineers a separate requirement that the allegation be there's no specification as to the basis for the belief that mr edmunds lack the necessary qualifications what qualifications did mr edmunds have what qualifications should he have what is the basis for determining that he lacked that what is this source of knowledge for what he lacked i think that's all relevant for a determination as to whether or not they dissed interested observer could believe that there was a non frivolous allegation of a protected disclosure with respect to the cell phone before going into the silk one did what do you understand mr becker to be referring to when he talks about flying an air attack mission what's an air attack mission to understand your honor again i couldn't i would not have that understanding from the allegations that are set forth in the allegations of mr becker i do have the understanding that what's being referred to as an air attack mission is part of the the the ability to put out fires and forest in other words there's airplanes that are sent out to try to determine the location of where there are forest fires so that that fire retardant can be placed on if you look at the allegations that appears my understanding is that's not the case that in fact these aircraft go out to people at the time and that mr edmunds was the second person in the aircraft who is and part involved communications to other aircraft there's two people in the plane and he said that this is the mission that he's on he's on this the surveillance mission is my understanding but my point is he's not the pilot if you look at the allegations it looks like he's the pilot he's using the cell phone my understanding is he was not the pilot he was the other person matter whether it was in one nine hundred ninety seven or nine hundred ninety eight or what i think you are to lie because i think it would be helpful to know particularly because of the allegation concerning the cell phone my understanding is that that the the regulations and the policy of department of interior changed over time as to how and under what circumstances they would use a cell phone so to that extent that they would be helpful in addition of that with respect to the qualifications will be important would be to have some allegation as to what was mr backwards understanding as to what qualifications mr edmunds had and what was his understanding as to what the requisite qualifications were so that we could really want to understand whether or not or assess whether or not he made a reasonable a reasonable observer is interested observer to conclude that there was some problem here that is the have to have almost facts to make a non frivolous allegation your honor that's a line drawing contest and i th before but now i'm with the judge pro strongly the line i think that you know you're requiring him to know vast amounts of information about mr edmunds background and when he flew missions and when he was certified to do what wouldn't that be more a discovery process than a allegation process play out again where you draw the line i'm not certain i think in order to have it despite interested observer standard chance and i think that when you combine that standard with the comments from this court in the johnston case where this court talked about whether it's facially sufficient whether or not and i want to use exact words of course detail and facially well supported disclosures i think here in order to have a facially well supported so close your disclosure you need some comment as to why he had an understanding that the requisite qualifications went there i think you had to have some understanding as to why he believed or reasonably believed or a reasonable person would believe that was improper to use the software we don't have any of that earlier that among the things lacking was of this information then why becomes more able to understand why it is interested observer could reach that conclusion is not an absolute prerequisite nor is it an absolute prerequisite to just state the specific regulation of the specific statute that was violated in order to constitute a non frivolous allegation of a protected disclosure but it's helpful it moves you in that direction and you know for example we don't know here whether he's saying that mr edmunds by by doing this using the cell phone violated the policy of the interior or did he violate the regulation and that is the policy of the interior if it had such a policy to use cell phones was a violation we don't know that information would be very help us it but the problem i'm having is that i think one could have argued that this dividing line the drop between affair with an unmanned probes allegation goes and in some respects you have allegations here we're sort of like even if proven this wouldn't rise to the level of a protective disclosure you say that with respect to the fourteen thousand  right it seems to me this flying an aircraft without proper qualifications at least that allegation if true would be close to at least arguably region the standard for protected disclosure korat i believe it's the closest i would agree with your honor on that and so then we're left to whether or not he gives you sufficient facts to come up with that but i think that's a what what standard do we apply when we review the a j and the m s p binns determination word erroneous lee conflated requirements for establishing jurisdiction with those required to prevail on the merits of a whistleblower protection act claim this court for more than ten years is trying to get the board to clearly separate the issue jurisdiction from that of the merits of  frivolous allegation should be should take into account the person making the allegation from the context of the allegation the substance of the allegation as upon its face and into in in terms of if there is the ability to flush out bearing in mind that under grub and other decisions the petitioner is not required to make to prove that he made those allegations just to make them and and he only is required to do to establish jurisdiction is to make them in the non fruitlessness i think simply goes to the do a very facial analysis of the allegation on its face and in this particular case as i said there were more than simply the hook up even those that confidential basis an ongoing email exchange it's in the record i would refer to pages three twenty three twenty three and there's others panix pages fifty to seventy nine and two ninety three nineteen  c and thus became part of this case mr beck we're willing to don't you agree that either his report to the i g make out a protective disclosure from their content or they don't regardless of what happened later in terms of assertiveness or act and just to parrot that equally and this is what i was famous for the record mr beck was eventually charged with a felony ended up leading to a misdemeanor and it was a his career was  a this was the most vindictive setting the this thing sat and i'm asking this court that in its day not what review take a look at what happened here this guy this guy was a competent professional employee who had a good service