court alleging that dr lu who is a whistleblower and on february th two thousand and seventeen he issued a letter in that letter was a protect disclosure it was complaining that doctors that were covering the intensive care unit were refusing to accept cardiac patients dr lou who was a the context in which it was written you have to understand that he and i this is the easiest way i know to answer your question and that is that the intensive care unit a few years prior to this time had been closed there had been issues in dr lou who had been working at the v a since two thousand and six so he was well aware of the history of the intensive care unit history of the hospital there in so when when two thousand seventeen came around he was concerned because he was not able to get the care for these patients that was needed and he was concerned about the ability to transfer patients that he was caring for his concerns and i was affecting patient care least potentially could affect patient care along with not following his recommendations for their care so there was a risk there and he wanted to express  more broadly are you saying that because of the conditions that closed the hospital in the past his concern was that if their current practices persisted they could very well  in so the the i don't i don't know if i think the the board saw this is more of a dispute between doctors and i said that's not what it was done dr lou had been there for years he had had a fine record he was not a doctor that had treated that was having trouble he'd been there quite a while but the people who made the ultimate determination decision were they aware that they have knowledge of  the letter and its contents well this is what's interesting because the naacp are they down he was he was the one who recommended this to the director over the facility and i found said well if you if you're someone who is recommending that then that knowledge simpy did on the decision making when you're saying recommend this recommended that you talk about recommended his termination yes yes yes and so i know about the letter that didn't it wasn't and so you're saying it was testifying at the equivalent of a trial in front of the administrative agency correct yes you know normally if we had a bench trial and the district judge made a finding of fact we would have to accept that finding of fact under lester was clear right so our standard here is substantial evidence standard is that right so why isn't there substantial evidence supporting what the administrative judge decided here because i think that the judge i think disregarded his testimony shortly after he made that statement in his statement just shortly after that have to rely on what the judge decided and look here i'm not saying that i'm what i'm saying is we can't disregard that testimony we have a statement here that says i x i saw this discharge is because your client was not at his post multiple times over the course of the period where he was being scrutinized right and so when i did when i looked at that issue i found some cases that talked about knowledge and timing and how taking that into account we have a situation here where the timing of the of the terminations was so close but were goes case a summary judgment thing that summary judgment is not appropriate if somebody gets fired a day after some protected activity right if it's the next day  look at that and it should go to trial as well unless you can point me to another case that forgetting but usually those are cases it's my understanding of summary judgment where the district court might have granted summary judgment and we say no no you're too quick to grant summary judgment because after all he was fired the day after he made his protective complaint right in that if i read this case is to mean that if it's close in time then that's sufficient to establish this presumption that it was as a result of the disclosure well if it's a presumption then isn't it for the finder of fact to decide whether or not but say the multiple absences from his post during his working hours was the real cause as opposed to made up cause he may be great if there was substantial evidence to support that but there's no substantial evidence to support what that he was a news post i thought there was evidence presented in the ministry of proceeding that he was that somebody was checking up on him and couldn't find him yes but if you dig a little you don't need to know what it looks like i just want you more grant ask if people have seen and she checked a few places and then came back here we can find never called his cell phone to see where he was further may very well have concluded that but again the last prong of of the there was a rd prong and she didn't get into that issue even though i think a brief that issue the the problem that i see with what with what the judge did was came to i think she rushed to judgment and determined that this was just simply to speed between two doctors for see see what it really was in the perspective of dr weil and as a result she didn't get into these other issues that i think are important and when you when you ask somebody that underneath you to go and search for a doctor that they don't even know what they look like and you don't call them on the cell phone you don't do any of those things that's not an investigation that's just an attempt to get what you want and  t i wanted to make a couple other comments in and that is on the issue of the strength of the agencies that evidence which is again we were talking about what evidence that the that the judge have that they would have terminated him anyway regardless of the letter and then we have to look at what his history was he'd been there since two thousand and six he'd had good reviews he never been written up for not being there they weren't believe that one of the maybe a supervisor testified that they may have been some statements by individuals so i don't want to misrepresent to the court but as i understand it they had auditors who would come in and do audits and he was never written up those audits didn't show that there were any any problems in you have to understand that the alvin you work medical center it's a huge complex so he could be in a lot of different places at a given time and she only this person that doctor in the day i asked to go look look to see where he was only went to a few places address is the purported misconduct of dr lou that's not under appellate review in this case what congress conferred to this court for jurisdiction is the whistleblower protection statutes and so the underlying misconduct is not subject to review he can challenge that misconduct as part of this case i understand that mr freeman devoted part of his brief to discuss portion of that there are only two independent bases that the board judge made in this case regarding the whistleblower issue the st part is that the board judge found that dr luke who did not make a protect disclosure the nd separate independent finding is that that the board judge found that even if dr who made this disclosure it wasn't a contributing factor to his removal and the st thing i want to do is point to just because it was mentioned as part of mr frick my friend mr freeman's argument is that there are a variety of testimony of witnesses who all confirmed that they had confronted dr lu who multiple times about his time in attendance discrepancies about trying to find him and not being available about manipulating pictures schedules and not being available for work there was an independent audit dr newdow who's the chief of staff of this case came on staff and seventeen immediately the head of the part time doctors and ministration said dr who should be audited that's when the audit began a month later doctor who wrote this disclosure letter a month after the audit began and he was eventually terminated in may of two thousand seven hundred dollars so those are the facts those are all in the record i think the easiest place to find out might be in page six dollars and seven dollars of our brief where we cite to the hearing testimony deferential standard of review and here we're talking about whether the board judge weigh the evidence and historically courts have been pretty respectful how the trial level tribunals have weighed the evidence even even though a court might have exclusive way to establish a contributing factor but i think the fact that congress laid it out in statute in two parts suggest that is the default way and so the knowledge and timing test goes did the official taking the personal actually personal action know of the disclosures that's part one they know section or part two is is the timing close enough in proximity that a reasonable person could conclude that that it would evidence some type of you know prohibited personal action here i don't think the judge question the fact that the timing was sufficiently close because we're talking about disclosure that was made in february two thousand and seventeen and a removal that occurred in may of two thousand and seventeen excuse me or so i think the borgias find was specifically on that knowledge factor where the board judge found after hearing the context of the witness testimony hearing the testimony of the proposing official the deciding official that these individuals really didn't have in mind you know we're making we're taking this action because of this purported protected disclosure and that's even assuming we only get there if we assume that it's a protective disclosure in the st instance the way courts have treated that analysis that contributing factor analysis as a whole is kind of a proximate cause test so it is there's some liber ty built into the statute because if you read section one thousand two hundred and twenty one dollars it says is there circumstantial evidence that would support that the deciding official knew of the disclosure at the time he or she took the personal action but here we know that  the chief of staff explained on the record and again the board judge credited this testimony you know he had he did not have the letter in mind in fact he didn't remember seeing the letter and the only thing he said on the record was i expected maybe i saw it on the date that the letters posted on the front of  letter but he had no recollection of a letter up until the hearing the deciding official in this case mr draw baron who's the director of the tennessee valley hospital system or health system conclusively said i didn't even know about the disclosure i don't know the subject of disclosure i didn't know the content of this kosher and so based on those two individuals testimony with the board judge had to conclude based on the weight of the evidence before her was that there isn't evidence and there's no disputing evidence going going the other way so if we're talking about whether substantial evidence supports the board judge's finding that the disclosure wasn't a contributing factor to his removal it would be it would be on the petitioner to demonstrate what evidence shows the contrary in fact you claim it in text only apart from  why shouldn't we be able to for that he did see it in that purpose was to get rid of it so there is the caspar theory in fact the closest case you'll find in the federal circuit speaking specifically to the issue it's not in the contributing factor part of the analysis it's actually in the car factor part of the analysis where once the petitioner bears their prima fashion burden to show that they have made the that they made a protected disclosure there's the car factor she would get into and that then shifts the burden of the government to prove by clear and convincing evidence that they would have taken the action even absent the  there's three factors the nd for prong is the motive to retaliate factor there's a case called miller versus the department of justice decided by the federal circuit in two thousand and sixty i'm sorry it's not in response brief and i can get the cite for you  either through a supplemental filing of some kind but it's actually only in a concurring opinion where when the burden then shifts to the government to show that it didn't how to have motive to retaliate it must show under that cat's paw theory that circumstantially the deciding officials actions weren't for lack of better were infected by some type of retaliatory animus so then that was in a concurring opinion but i think even in that case what the court had to and it was in a concurring opinion it wasn't in the the  as far as i'm aware it's never been applied under the contributing factor analysis of the whistleblower law by any appellate court but even when you apply it to the car factors part of it whether there's a motive to retaliate what court court found was that and there was some type of influence that the proposing official would have to have had over the design an official or some type of influence that the individuals reporting or proposing the action would have had to have had with regard to the deciding official such that the deciding official was infected by that and we don't have evidence of that here but the nd thing is that the prosing officials actions demonstrate some type of retaliatory  and we don't have that here either so again we're talking about a situation under caspar theory where no appellate court has applied it to the contributing factor analysis but even then when it has in a concurring opinion it's done it because there was an influence of of action that infected the proposing a for the deciding officials actions and there was some demonstration of retaliatory interest and i don't think that's too different from the discrimination cases that this court hears typically you need some evidence showing that if we're going to apply a catspaw theory there should be some evidence of influence and retaliatory animus and we think that's absent from the evidence in this case we've pointed to the various portions of the record i think in page twenty one of our brief citing the proposing in deciding officials testimony both of whom explained credibly to the board here judge in this case that you know we don't see we didn't even think about the letter at the time poster decided the action but one key  issue is whether this letter is protected activity and so why don't i sort of give you the devil's advocate that it is protected activity explained sure so i think it's important to know what the board judge did here so the st thing t board judge had to do in this is that the pleading level is determined whether this allegation of protect disclosure is a non frivolous allegation with the board judge did was she read the letter and said it's a non frivolous allegation we'll let it survive the pleading stage but once you get past the pleadings they you need to follow the statute and point to circumstantial evidence that demonstrates that a disinterested observer a reasonable person that's a standard in the statute a reasonable person in your situation would believe that you are making a protected disclosure so i think what the board judge did is read the st line and said ok patient care v a hospital it seems to be talking about some danger to patients lets it survive the pleading stage then on the back end accepted all the evidence heard the testimony heard dr lou's testimony heard about some of the things that were going on behind the letter and stuff that had omitted for example that ok the the your campus doesn't have a cardiology care unit but the letter makes no mention of the fact that the national campus which works in tandem with the or campus did have a twenty four hour dedicated cardiology care unit and that dr lou actually utilized this avenue of sending his critical pic care patients on a number of occasions when he realized that the york facility wasn't a proper place for a distance between the two so it's i had to google this is about thirty miles but it's a unitary hospital system one zimmer the other ones in nashville but dr lou who did avail himself of the nashville campus when he realized that the your campus wasn't suited for his particular cardiology patients and that's what's omitted from the letter so when the board judge took everything in context based on totality of the evidence she decided t things number one is under the statute you're required to demonstrate a substantial and specific harm to public health or safety i'll point out that in section one thousand two hundred and twenty one dollars there are a variety of different categories are protected disclosures substantial and specific harm is the only one modified twice so it's not it not only has to be substantial i think judged on of you pointed out your st question to my friend mr freeman is this is substantial harm i think the board judge credited that it could be substantial but wasn't specific this i think that would be the most traditional way to do it the miller case that mr freeman cites in his brief the miller versus v a case it's a board case in two thousand and two is probably the most traditional way you would demonstrate a substantial specific harm in that case  the v a physician actually name specific instances where he had trouble getting the patients into the facility but it doesn't have to be that specific for example if there's a like this is in the chambers case that we cite decided by the federal circuit it could be a likely harm likelihood of harm but you still have to be specific what is the harm that you're talking about in this case what the board judge found is that it wasn't specific enough because only the st statement of the letter talks about some generalized harm and then it just looks like an airing of grievances between two people who i mean frankly just probably didn't like each other and i don't think that's what the whistleblower protection laws were designed to protect it was meant to protect people who are trying to disclose government wrongdoing not to air out personal grievances not to protect themselves you know shield themselves in a cloak when they realize they might be in trouble because they're under audit for some type of time just time discrepancies so if you're the board judge evaluated the full the full context of the testimony surrounding the letter evaluated the letter itself dug a little bit deeper and ultimately concluded that the evidence did not support that it was protected disclosure  o again there are two independent bases for the board judge's decision in this case number one that the letter was not a protected disclosure which alone is enough to affirm the borgias decision in the nd part is that even if it was i'd like to respond to several of his points if i may the st point was this argument that the deciding official the deciding official here is over the entire complex which is number of different facilities dr nader now basically said this is what i want you to do and she rubber stamp that and i don't know how i don't know that you can say but the deciding official can can say why i really didn't know anything and so i can do whatever i want i think the law is but there's a the whatever doctor they down suggested that the deciding official do whatever he knew is imp onto the deciding the decision makers it's just that i think this is common sense i don't think you can get away with it by saying well the decision maker really didn't know what she's taking a recommendation from some in making a decision that way the nd point is if you look at the letter the st sentence of the letter says every time i want to transfer a cardiac patient from the floor to the i c u is a battle so that specific it's a cardiac patient and then at the end it says i'm also requesting all the administration of the words to address this issue on urgent basis and that's where i get to be with your opponent argues it has to be specific how do you respond i don't think the law means that you have to name a patient that doesn't make any sense if he's saying a number of patients and saying i have these patients always saying that we're going to split hairs and if