final and then take an appeal and that's what we're doing here this takes up a lot of your time and i think it's completely unnecessary but it is what it is to say some of this case is about process has nothing to do with the merits of the case that has been no case decided on its merits there's been no discovery in this case there has been no hearing in this case there has been nothing to adjudicate this case that administrative drugs but the issue of due process was never decided never addressed what the process as to why as to your client miles an ira plane singing retaliate then retaliated against for making certain disclosures the administrative judge look that down and down that there is no need for a hearing because he's failed to make non frivolous allegations of retaliation  the initial filing was at appendix twenty nine fall on june seventeenth two thousand  and i document says absolutely nothing about whistleblowers where does it say he's a feeling his removal what's he been removed at the time this was filed no talking about twelve fourteen and i'll give it to you in a second j complaint with the special counsel saying i find it's retaliated against for make that's one disclosures and then you appeal that when they don't reach a decision here that's not what we that's not the basis of the appeal judg the five u s c twelve twenty one a specifically says subject to the provisions of subsection v of the section and employees former employees or applicant for employment with respect to any personnel action any know that's true it just isn't true you know it's not true that the a j so hell i don't know if she didn't so hold no russian are saying it's not true that twelve twenty one requires you to exhaust your middies with the special counsel employees federal employees if they get fired are entitled to do a hearing if they're entitled to a right to appeal under chapter seven the fide who did not file an appeal under chapter seven five you filed an individual right of action appeal under twelve twenty one which had different requirements different exhaustion requirements and i didn't see anything in the records where you even brought your client's removal to the special counsel to to proceed as it was a boiler plate twelve twenty one it's a whistleblower counsel so the removal is not proper under a twelve twenty one claim that was what the what the at the hearing officer held the hearing officer in fact held that that was had been a legitimate exhaustion  oh i don't have any jurisdiction here i can't i can't hold on this she acted on it she she denied our remedy but she acted on it and thereby accepting the jurisdiction of the fire she went in and said these cases under the same track if they had docketed this as an adverse action you'd have an entirely different case number they docketed this is an iraqi appeal then the judge rhetorical why would she have even considered well  so they don't have to go through the special counsel to do that they can file directly with the work you didn't do that there is no document in here i see that suggest you file a chapter something five so we only can look at this under the guise of twelve twenty one which is an ira appeal and to make an ira appeal you have to make non frivolous allegations that your client was retaliate if you want to protect a disclosure then let me address that in the board looked regard to the issue of jurisdiction all right we submitted i think five or six affidavit citing to the fact that they're in the effect that and the judge did not even didn't even address them there's not even any reference in this decision this decision was put together very very quickly and it was because this kept this case that sat for almost two years under a standard that requires that board to render a decision in one hundred twenty days almost two years we filed a notice an effect did file a request for a writ of mandamus and it was only when we did that that this decision was rapidly written after th fact but there's no reference here at all judge nothing to to our submission this regard on the issue of jurisdiction i see a very extensive decision in the very first pages your appendix where the administrative judge is addressing the alleged protective disclosures you made in why they don't make non frivolous allegation is that what they days decision says i don't see any detail of that at all there is there are blanket statements where is the error in this decision well there's no reference to the evidence requirement by making a non frivolous allegation were protected disclosure petitioner did not make a non trivial allegation that he had disclosed any substantial and specific danger to public health or safety this and specific danger to public health with regard to the allegation about the individual that was having a rash his own investigation concluded that was most likely due to cleaning products that were being used  in the lab at the time when the although he did did recommend additional air testing if you look at his actual report on that that he submitted which is that appendix to eighty two and actually to eighty three his conclusions are state that it is doubtful that there is an issue with the air quality in the room and he goes on to say that it is likely that a contact dermatitis is indicative of a can a chemical right what he submitted actually indicates that would be a substantial and specific degree to public health and then with regard to his allegation about the possible legionella in the water supply that one's even weaker because he didn't supply any actual that allegation to always see that a j found that he did not exhaust that allegation there but then she also went on to find that even if he had exhausted it it would have been a protective disclosure so even assuming that the a j was incorrect in finding that not because of the additional finding that it's not a protective disclosure that that issue would not affect the outcome of this issue and so to determine whether there was a substantial and to specific danger to public health or safety the court considers three factors the first one is the likelihood of harm resulting from the danger second is the imminence of the harm so be satisfied first i would disagree no we there is there is a notice of removal in there and then there is a later dated notice of retirement so it seems he probably retired in lieu of being removed but i'm not sure exactly what the facts are on that because it was never any first hand knowledge of the legionella contamination he's just making these sort of statements that he was aware that they were there he didn't say why or how his what positive to think that really and so that sort of out to david  enough to meet the standard  another coworker who was aware of the facts of the situation affidavit of mona hefner another coworker in the safety office all these were submitted to the court affidavit of kevin baker another individual who worked in the safety office affirming and repeating the allegations made by mr libby all those those relate to legion is if the what else is she have to say well that's what we're challenging judge you know that that there is no problem of value i don't know what one has to do in order to meet that standard do you think you were telling me before that she didn't consider them at all and i could and now we have brill what we had was a footnote judge discourse from the the the decision and i'm looking at appendix page seven half way down the page this is the a j who wrote this based on the above i find the  stopped he reported what he knew at the time there's no obligation that he can to conclude a full investigation when he's told don't do it anymore you're troublemaker get out of here that's what happened