they please the court my name is moral hendricks i'm representing a petition liar but this is a case about a real whistleblower myron site who took the risk and made protected safety disclosures this is a case about a whistle blower a documented reported multiple thank you violations at the sasebo fuel facility he also documented the improper use of navy materials on the residence of a navy commander on this record mr sipe was not protected from the actions of the navy when they terminated is assignment in japan an extraordinary move that they had never done any other time and then sent him home he's not protected from that based on the whistleblower protection act and those protections are rendered illusory for all federal analyze the retaliatory motive fail to analyze the evidence it's a clear and convincing evidence standard and instead the judge said well if i just turn my back in for ten that there's no whistle blowing and look at the evidence with no whistle blowing in it think i could sustain this it's really it's a misappropriation a misapplication of the courts and that's it's an error of law well and of course this is the problem here there was evidence that the disciple and that evidence was derived from the testimony mr hanley was that his coworkers became uncomfortable when he started taking pictures and documenting safety reports to henley's testimonies in the records cited in the joint appendix to handling was the number one personnel person he was a top advisor to the captain who made this decision and he testified very clearly and clearly that this was a problem and that the unrest among some of the employees because their number four emmons issues here there's no question  sikes competency as an engineer this is only about supposedly he couldn't fit in with the overseas environment now it's an interesting letter if you look at the letter that they sent home a failure to a doubt to the overseas environment now you and i might not adapt to the overseas environment in japan was to cyprus married to a japanese national he speaks japanese he specifically sought out this is simon so that they could be close to her family he was very into the japanese culture and yet they never really explain what they mean because they don't know what they mean because it's a smokescreen it's a smokescreen for the fact that they were being told that they were these safety violations and that they didn't do something about it mr sipe would take outside of the command and they were afraid of that so they sent the military police and took him out of the off the base mr sipe met with the count and the count in that removed him in sasebo in the mid february three weeks later they sent him a letter and said you're being sent all they discussed the safety violations at that time and the captain said will i don't know these safety violations are serious mr hendricks japan is the place i find i have to be most careful of cultural differences i teach there are several weeks every every year and i find there is a vast difference there's a finding that that difference was dispositive here he was unable to deal with that difference how do we how do we accommodate your argument to the fact that the backlash found which we must honor are different from what you characterize well the defense that the navy is trying to use here the statutory defense requires clear and convincing evidence that the whistleblower disclosures they would have taken the same action this is an extraordinary action this is not an ordinary reassignment they had never ever done this also the testimony of handling the testimony of the captain this is not a situation where you're dealing with an ordinary person if they did something extraordinary what made myron so extraordinary he was a whistle blower people didn't like the he ruffled feathers people didn't like the fact that he was exposing this facility you have to understand with the cesspool facility is it's a huge fuel facility it's taken over from the japanese imperial army after world war two they have these huge tanks the size of football fields inside and many stories deep they have to be properly maintained and they have highly flammable fuel and they weren't being dealt with properly the maintenance wasn't being done properly there were a number of things that he documented documented rust corrosion and all kinds of issues in a report it's part of so the fact of the matter is there is not the requisite independence they not only have to prove that they might have done this based on some factual as they have to sure that that evidence is independent of the whistleblower the judge never really analyzed it there is no real limit analysis if you are satisfied that the evidence is independent of his whistleblowing then i guess you're left with the defenses state but it has to be clear and convincing the navy test testimony of the navy officials is that this kind of action has never been taken before you suggested that there was a while your argument has mostly gone to factual disagreement with the finding of the born you suggested there was no legal way or what was the legal there the legal error is that they was independent of the whistle blowing up to the only problems anybody had with myron site were that they were upset with him because of his whistle blower because he was reporting and taking pictures of all these conditions that were wrong of at the one of his disclosures had to do with the improper use of fuel nozzles in aircraft on a mobile refuel or this mobile refueling was used to refuel helicopters that came to sas about instead of having the proper nozzle there that had a regulator that pressure down to fifty five they had one that was over two hundred during the time period when this was going on u s ambassador baker flew through his helicopter was used was fueled using this refueler and the bladder burst the fuel bladder burst that's in the record i mean these are safety violations that could have had serious consequences they could miss no one was actually hurt there are all claims of issues here about safety that were just left that were just regarded by the management page right yes he was and there's probably nothing a military officer can do to get himself dismissed quicker than to overlook a safety problem any injury were to happen on his watch go to his failure to protect the safety so i'm trying to figure out why captain abramowitz would object to receiving this kind of information this is the best thing that could happen for him and i would think so it's hard but that's his motivation then another words for her firing side his motivation for firing sipe is that he's listening to the people who are complaining he is supposed to take these take the safety disclosures and evaluate that remember they're protected disclosures if there's a reasonable basis for them and you look in the file look in the pictures that are there look at what was it there's a clearly a reasonable basis for and instead they said we're not going to do anything with it i think his concerns may have been purely budgetary that he'd been on on he come on to this and then he was concerned about how much money this was going to cost to fix and he didn't want i don't know mr abramoff the captain abramowitz testified that he did take into account the whistleblowing when he made the decision to send site poem and he thought that that would be the best resolution this is an extraordinary thing that they did they had never done it before i was no record that they've done it since and the thing that makes  only was there a problem with mr sikes competence in his ability to supervise the masterly were contractors of japanese workforce of which he had responsibility but there was also testimony or evidence in the record that he had acted somewhat rationally someone  had indicated that he had a gun and if you look at page by two six six of the joint appendix you'll see that in the e mail from mr hanley who was the executive director and the head of civilians he said that the reason they sent armed guards is because there was there was some concern that he could harm the board's application of the clear and convincing standard there's no question that the board applied it did it ministry to the judge here spent forty six pages documenting the evidence of record and going through each of the three car so called car guy or by deciding officials in this case the judge found that all thirteen percipient witnesses including mr site and two witnesses that he brought in on his own behalf testified that mr sipe and the master labor contractors or the japanese workforce in this case could not work together the problems with these master labor contractors preceded mr sikes protective disclosures mr sipe came on at sasebo people two thousand to one his problems in addition there is ample evidence in the records from individuals who had who could not have had a motive to retaliate that mr side could not get along with the people he was charged with supervising captain bug done a bit to fit the administrative judge down to the very credible it's said that the employees had problems with chain of command and that he had complaints from employees separately apart from any disclosures that mr sipe had made case your honor but here the evidence show that the work force when mr sipe came on was happy very because there they were happy to have somebody with the engineering experience in addition to the problems that mr sikes had didn't have to do with the fact that he was identifying safety problems or maintenance that needed to be done or corrections that was his job were not saying that the that his disclosures were not protected but what we're saying is it was his job to identify the safety problems and knowledge test that the disclosures were protected and were contributing factor that doesn't mean that he didn't take them into account when he reviewed the evidence and determine if there was some clear and convincing evidence that they were not a factor in the personnel act of judge express we found that although the safety disclosures were documented and that they were potentially protective disclosure he found that they had nothing to do with mr sikes with the order to send mr sipe back to the united states he made that express find it he found the captain ever mobile the captain who ultimately made the decision did in sixten civil investigation to determine whether or not the problems that were going on in sasebo had to do with the around the same time that mr sutton started the d c disclosures didn't reflect badly upon him and as judge rader pointed out it was his job to make sure that safety problems didn't result in some sort of explosion or another tragedy that could have reflected badly upon the entire installation in in japan in addition it was a document as you as you know course the fact that the particular decision maker doesn't have well the cat's par rubberstamp theory only comes into play when they decide to fishel is influenced by a supervisor or somebody else who has the ability to make a recommendation to take action there has to be in the big caused the personnel actually by bringing something up because they were the subject of the protective disclosure here it's undisputed that mr nelson who was mr sikes direct supervisor did complain but that was not the reason that the that the enchanted with the disclosure when you say the military personnel were complaining i would think so if he was reporting this story in print i need to clarify that your honor i'm not talking about the military personnel who were the subject of the disclosure as commander he could not work with the japanese workforce they did not trust him and it wasn't because he was taking pictures and it was because he couldn't interact with them he would close the door on them he would tell one japanese employee that another disclosure that's really what's at issue here there's no question that mr sipe was a whistleblower but after sixty days of hearings and listening to thirteen witnesses and looking at of a lot of documentary evidence the ministry of judge here bound but with an abiding conviction that the protected disclosures that mr sipe made were not the reason why he was sent back to the united states because he had serious problems supervising he was a good engineer but he could not supervise any mr gladson so he was unable to manage the n l caesar masterly were contractor just because to the point where they walked out of meetings mr hanley said he couldn't leave the workforce they need a clear direction and mr sipe provided conflicting information and isolated himself from the work force mr sent who was sent to investigate that found that mr sipe advocated for change but could not accept it due to his management style he lacked the skill to make changes and he questioned his qualifications now when he will probably make much of the fact that mr sam played golf with mr nelson and had dinner with captain commander brown but he also talked to like thirty twelve or thirteen other people in his findings were independent of the fact that those people early two thousand and three that's correct so that was between the time of the conversation the direct conversation between i promote change and cite side and time of the business the direct mr hendrick you said the problem that we had no clear and convincing evidence here but the ministry of law judge has an entire section entitled clear and convincing evidence it goes on for a little over twenty pages twenty one to be precise and then ends with after careful review of all the evidence i climbed to the agency had shown by clear and convincing evidence that it would have release him anyway i don't think that clear and convincing evidence in there is independent of the whistle blowing it to it he went into this environment and people were upset with what he was doing was trying to change the status quo counsel for the government suggested that he had problems with all the master labor contract people that's not true there was one segment that he had problem with in another segment where there were no problems this testimony from couple or witnesses that there was no problems with the segment the segment had problems with this the segment whether they believe it or not it's just it's the way things are done there was one walking they were not walkouts it was one every problem started after the july airconditioner incident that you like air condition is it is is the rocks were things started going forward the air well i do i do i credit your your version or do i have to credit the version given me by the borg you have to credit whether this is independent evidence or not whether this is it you know if evidence coming from and ron wilson is independent of the whistle blowing then i believe you've just pulled the plug on whistleblower protection because anytime you only get a whistleblower case when something bad has happened to the whistleblower and if the people who want to retaliate can we tell you it's all well there were issues that we could have done this for i mean this is this is serious this is a serious policy do we want people to blow the whistle are we not want that do we want them to take the risk besides career was set back years by this he has recovered now six or seven years later  but he has lost promotion potential this is been it is a big deal thing that happened to him being sent home from japan and i'm still quite impressed though that the board even goes into people who like mr slide william liked him and said he was honest and supported his side in ways both sides of the evidence that talks about service and this and and these people who think very highly of mr snipes and tried to support his case produces in the mind of the trier of fact an abiding conviction that the truth of the facts of contention is highly probable i don't see that this evidence has that it has to be clear and convincing evidence that this was independent there is a nexus here between what happened to m some intertwining of the whistle blowing and the other causes what the administrative judge's job is to do which i think this administered judge at least correctly understood the assignment is to figure out whether or not withstanding that else so they've never treated a nagual simpler this way then i'm going to count that in favor of the government since there are no compared the only conclusion that a logical mind can draw is they're doing this in some fashion because of the whistleblower this is an extraordinary activity i think the cat's paw elsa's applies more strictly under this section than it does under the e u law i don't you can import it over here it's clear and convincing evidence of the retaliation motion i don't think the motive to retaliate was properly was properly assessed commander brown said commander brown was consulted by lawyer jordan we can under the best occasion there was no independence commander brown was consulted during the march two thousand and two thing and that was the last thing they did before they sent him home commander central report and was commander sent not mr sept was in november two thousand and two and nothing happened as a result of that commander sam recommended that mr sipe be removed from supervisory duties not sent home so to the extent that his report is cited as a basis for the selection is s