completely i find it interesting you say it's an argument completely disregards the fact the kernel tape removed a qualified medical professional from the president of afghanistan stands bedside replaced the professional with someone on par five from the midwife i believe she was a midwife and that was that if you believe it i do know at this point time i can't confirm but i believe the disclosure that he made is there a position in the armed forces for a midwife as opposed to a nurse midwife to my knowledge i'm professional troops with herself for the sole purpose of getting closer to the president that afghanistan for a photo opportunity there can't be any clearer you know example of an abuse of authority of the point time to take advantage of her position for personal gain w touch sterile equipment rendering it unsterile he believes that she in danger to his ability to provide medical treatment is that true zealous is that your allegation the allegations as you understand them well then wouldn't it be relevant whether or not she actually is qualified or and i understand he's alleged she's only a midwife and it seems hard for me to believe that a midwife would be qualified to treat a male president of a country because you know they don't have those parts but you know if she's not judge the midwife and she's actually a nurse and the midwife then theoretically she would be eligible to assist him do you think then that that has to go to the merits i e a full trial or could there be violation occurred and the problem we have here is that no hearing ever happened you take a look at the other cases that we cite the drake case the johnston case and the gilbert case and each one of those cases this this court reversed emeri specifically points out whether or not they met the definition of intoxicated or not is not relevant at the question of jurisdiction at the subject matter jurisdiction when we get to the merits of the case after a hearing when it initial decision is rendered yes that's the a david for example as well the the first disclosure there the ministry of judge characterizes this repeatedly as just a mere staffing assignment dr hansen disclosed the office of special counsel as well to the merit system protection board that this was not a mere agency's mission to establish and provide quality medical care in f you know at that time whether or not there yet but he doesn't but the problem there is the lower court held he doesn't allege specifics as to what if any health or harm or abuse of power that amounts to he did with regard to colonel jake replacing the person in a particular setting those are specifics the rest of the claims are at a level of generality that i'm not sure that a reasonable person reading them he replaced medical staff with non medical staff will suppose those medical staff are doing administrative functions do you understand he didn't articulate that the medical staff were necessary to actually get flu shots so whatever he didn't articulate what they were doing and what the new non medically trained staff were doing that did in fact jeopardize the health mission so there aren't the level of specificity it seems to me for many of these claims that would be necessary for a jurisdiction in johnston like the healthy and forward and identify the the agency have replaced safety management individuals with people who lack the necessary training to do that now johnson probably the far end of the spectrum there dealing with nuclear weapons and things of that nature but it's the same type of allegation that you're taking a qualified qualified employees and replacing them with knockoff fire police which could cause a substantial risk for in that case it was specific harm to those individuals in this case in dr hands of sleaze he made a disclosure that these reassignment to provide not medical staff to do that is going to jeopardize who do what that's the problem to do what no an abuse of authority or it's a substantial danger to public health or safety but you're not providing any connection between an event that happened and what that conclusion is you can't just state i said this that could have caused this and make that a disclosure that's not a non frivolous allegation of the disclosure i disagree i think you know dr hansen came forward in both is always the complaints and suspicions to the administrative j again at the jurisdictional stage to make the non frivolous allegation he doesn't have to go into that level of specificity a level of specificity is required but it is also focusing on if i can be completely conclusory though is that your point no only a midwife the record doesn't reflect whether she's only the midwife and then you actually said and mr hanson doesn't know whether she's not i think mr hanson a probably does know what i mean he's the one who made the allegation but how can you assert what you think dr hansen knows and doesn't know  boy parts and he has boy parts that's what needed the addition that needed to be in here and to give it a level specificity that you're saying would suffice i'm saying i like doesn't work on guys it has to say that express a doctor who says his supervisor took out his p s a his physician's assistant replaced the physician's assistant with herself when he was treating the president of afghanistan at the president's palace she then she is not qualified to offer of the medical treatment he says and he says while she's there she touched a lot of sterile equipment rendering it unusable she upset the president of afghanistan so much that he called the base and said don't ever let that woman come to my house again she complains to her supervisor colonel or commander with whether i'm up i'm going there right that she did this after she finds out he complained about her having done this she comes to him yells at him according to him yells at him for having done that and the very next day according to him just one day after she confronts him and yells at him for having complained about her he's told that she has removed him from his position and sent him home those are the facts alleged now they may not be true but how is that a non frivolous allegation that a protected disclosure that could be a contributing cause to someone's  separately you can add them together so you look at the protected disclosure part individually saying your standard i think your point is well taken but why isn't that enough just to meet the non frivolous allegation now if it is untrue can't the government come in very here's the thing if it turns out that this colonel tait is in fact a nurse that puts an end to his claim that she was unqualified and that it was therefore either abuse of power or risk health or human whatever so is there some way that the government is able to shortcut this elevation from the pound require someone you know what if what if he said she is a midwife and she is not a nurse she has no other medical training she has only ever treated women and if all of that is untrue it turns out what  i understand why you're doing it but we gave you guys split this time so please don't have the same discussion that we just did and if there's more you need to add or something you really want to add to what he said go for it but you know it's the redundancy it's not necessary and detail the allegations of fact that could convince a disinterested observer that the agency had engaged in gross mismanagement or abuse of authority despite multiple opportunities to meet that burden and with the assistance of counsel dr hansen rested on his opinion appeal and and does all the stuff about protected disclosures makes his allegations but is the agency allowed to respond to arguments about why they are protected yes your honor and the army in this case that file are that she was and to go with him on this visit to treat the president of afghanistan to establish an abuse of authority dr hasn't had to show that the decision to put yourself in the position was arbitrary broke appreciates at the first level dr hansen up five enough  for the visit well what treatment of the president of afghanistan need is also going to be there apart from whether she's a nurse midwife or a nurse does the record show what her position is in afghanistan what was her what was her role there she was the first level commander in charge of the combined for medical unit that dr hansen was healthy they are in theater she's a civilian employee an expeditionary missions boarding an army unit which in turn supporting a very large nato operation to advise and help the government of afghanistan the big part of what he was there to do was to give advice and help the professionalised their national winnable system and sometimes provide a direct medical care if there's some sort of table of organization within the record there is not dr hansen in order for her decision to put herself in the position for her decision to be arbitrary or preaches there would have to be no rational basis for her to do that other then as dr hansen alleges to satisfy her own interests and getting a photo opportunity she this is first of all military commander the allegation is if you're going to provide direct medical care to the president of a foreign country and colonel take decided and put herself in the position of going with him and displacing a physician's assistant for four for what purpose it's not clear from the record but the implication is that she was going to be providing medical care at all with dr hansen but there no facts to support that well the of the alleged are that she touched and rendered unsterile sterile equipment so was that by accident did she trip and fall into the equipment i mean she was touching at least as alleged she was touching medical equipment within the treatment room to this about that out the first is that allegation appears in an unsworn statement provided to the ministry of travel by regulation the allegations that can support another us allegation have to be swore under penalty of perjury that particular allegation was not the sworn allegations in the response jurisdictional order are sworn and that he did you make that argument in your brief i don't recall it because he makes the argument is blueberry that you touch sterile equipment and thereby rendered you know the equipment unusable during the medical treatment yes i don't recall you of discretion partly it's the thing i struggle with this is there anything very specific and the record about his disclosures to o s c i felt like an e mail or something like that is there any more detail about arbitrary capricious has to be measured at the time the decision is made and not based on the consequences after the decisions the allegation one of them sworn that colonel tate contaminated the sterile field when she was present doesn't entirely bear wor result the question of whether her decision to be present in the first instance was arbitrary capricious the focus on the decision should be based on when the decision is made or not what happened afterward that's assuming we don't understand as allegation  a disclosure of she created a risk to public health or safety by contaminating the examining are correct here and i see that i'm past my time but if i may finish my answer to your question even if we were looking at substantial disclose and for to make disclosure one i understand on probably tell a geisha and the key here is only one of these disclosures needs to be established to to establish the board's jurisdiction here and disclosure form was sufficient as an abuse of authority disclosure public health and safety or whatever that language as it was only played as an abuse of authority but with regards to your argument about bootstrapping the two together with your disclosure of five we make the argument that by fragmenting all these issues out you actually ignore the gross incoming chief of staff staff a change of the guard at that point time and the ministry just completely refused to analyze that all together so each one any one of those could be sufficient for has established the board's jurisdiction and judge moore you asked a question about specific case on a whistleblower case but i'm pretty certain i haven't many years ago with bureau of indian affairs case where there was a very similar issue is that after this court established that the only burden you needed to meet so the minute you think even if you've established non problems allegations that the agency company can come in and say we want a summary judgment on jurisdiction because they're prohibited there their facts are all merits so sure they could as part of their merits argument put out evidence showing that this woman was a nurse not just a midwife and therefore prove that it actually wasn't a disclosure on the program was gross mismanagement that case was decided after initial decision after hearing the merits it was whether or not this man it resulted against the appellate but it survived jurisdiction that's our argument as to why this