good morning your honour's i am crystal wright counsel for needed johnson petition on the matter of any jobs and be the department of labor i do want to give a little bit of background i understand that you've read the brief but i'd like to just give some historical background we're here today because my client's life was devastated after wrongful termination i will point who's your honour's miss johnson to get her ethical and ministry to duty to report fraud or potentially fraudulent activity in the workplace that could harm a negatively impact stakeholders did make that report in fact she made several reports over the years while trying to maintain the same performance she had maintained in years past mr johnson sought to prevent fraud she sought to prevent the collapse of an institution whose collapse had the potential to cause a domino effect ruining the lives of stakeholders and others in the industry and said of meeting miss johnson articulation of her concerns with open ears and an eye towards change her superiors met the concerns with suspicion and an eye towards terminating her in violation of established law your honor is after her terminations wellpoint actually put measures in place to address and potentially correct the very issues mr johnson spent years explaining that she reasonable lea reasonably believed were illegal or fraudulent in fact wellpoint was fined and forced to pay a hefty fee because of the very conditions johnson brought to their attention in the years prior despite that your honor well contributing factor to the adverse action your honour's miss johnson did engaging in a protected activity there is no dispute that she suffered an adverse action as she was terminated there is dispute as to whether or not there were other contributing factor belief that the conduct complained of constitutes reports of mail fraud wire or radio or television fraud bank fraud securities fraud violation of any whole regulation of the security exchange commission's or about ration of other federal law relating to  shareholders under other federal laws and that a person of similar experience training in factual knowledge would believe that a violation had occurred is occurring or is about to occur instead of using the standard articulated in the statute the a l g inserted both times and sort of their own interpretations deciding that she did not engage in a protected activity because there was no evidence of well point's financial statements being manipulated to hide performance penalties paid no evidence of stockholders being she had to say something was wrong exactly so she may not have to have specifically used the word i think that there isn't fraud in this case but she has to say something more than operationally the computers aren't working right or something like that doesn't she she does your honor in fact she so what is it in your view that she has to say she has she has to actually say that she thinks that they're not working and that it will have a trickle down effect or a domino effect to the shareholders that would negatively impact their shares or their stakes in the company and that's what she did that's what she did for a year and so that wellpoint i don't think that it's evidence that they were made aware by my client because they change their practices after having terminated her didn't the day have a hearing which he heard from witnesses and had to make credibility assessment right absolutely and he made really have the case we litigated but definitely reassess the credibility it's because it was an absolute abuse of discretion given that they picked the placed and unreasonable amount of weight on the opposing sides are rational an argument even though the evidence shows that after firing my client after terminating her ruining her life they changed the very things about which she complained and that's evident in the transcript of the hearing well if it were true that what she complained about was the fact that there was an inefficient computer system which caused everything to get delayed and they changed that at some point does that prove that she complained about there being something not fraudulent or that would affect shareholder values or i think there four years prior to them actually doing something and then they came and did an investigation but as mr johnson began to push further on the issue them wanting to pull back and isolate her so that she wouldn't i guess be able to bring this claim it terminated her and so and then so fixed everything up so that it wouldn't go any further but she but what happened as a after her term an asian i guess is immaterial when you consider that she was terminated for having blown the whistle something that our brings actually is designed to protect and their main issue the question is that she didn't have a are there position that she didn't have a reasonable reasonable belief subjectively or up to actively that her that what she was alleging having occurred was actually fraudulent and she did and your honour's she absolutely had a reasonable reasonable belief and it's evidence by the fact that they changed everything after having terminated are similarly situated people with the same position the same position with the same level of knowledge changing the very things that she complained about that makes her believe that goes to prove that her belief was actually very reasonable and that's the reason the lack of reasonable belief is why they closed out the complaint she had that actually the company actually changed their behavior after having terminated her and that supports the fact that her real belief was reasonable there was no requirement that they have to move and then employ you have to move with certainty in regards to her belief that there is an actual one she sells felt so strongly about the company's value to abide by the terms of its contract and potentially defrauding its shareholders that she committed herself to monthly reporting to supervisors and regard to this objective standard she met her burden that she absolutely engaged in protective activity by every definition and for that reason alone she was terminated so forcing her complaint out and nine her right to a full review and adjudication on the merits is a violation of the very law designed to protect her she's entitled to present her constitute a violation of federal mail wire bank and securities fraud statutes and the f c c rule or regulation or provision a federal law relating to fraud against shareholders in determining does she have to mention the word fraud no your honor she is what does she have to do to comply with sarbanes oxley how much and she have to say she had me she need not u or words give a fight haitian to the underlying violation more to the elements but she doesn't need to provide a sense of the specific conduct she believes is  violative of one of the socks a numerate of laws and she needs to connect it to stocks so it needs to be clear to an employer or her supervisor or manager that she is complaining of illegality or fraud so in determining that miss johnson failed to demonstrate that she actually believed wellpoint conduct of violating any of the fox numerated laws or that such a belief would have been objective lee reasonable the a l j in his discretion credited the substantial evidence likewise this court should not disturb the l g s credibility determinations or the findings based on these determination but should affirm based on the substantial evidence of the record and the more limited opinion from the a a r p clarify for me did they find that the essential failure of johnson's claim was that she did not subjectively believe x y and z or that it was not objectively reasonable to believe x y and z or both because when i read it and i really read it it wasn't crystal clear to me whether they were saying a or b or both there's no question the l j said i don't buy what she's having to say i disbelieve and discredit johnson i credit the supervisor and here's why but i wasn't quite clear whether it was because she didn't subjectively believe there was a violation of socks or because there could be no that both ms johnson failed to demonstrate that she had a subjective belief that the conduct she complained of violated a sox provision as well as any belief she may have had would not s them together as part of the protected activity analysis however right but your point is she's got to prove both and if she flunks out on either subjective or objective she loses and i'm just trying to figure out whether they said she missed on the water she missed on the other or she missed them both on page four of the a a r p decision the court explains excuse me the   and if you like i can go through some of the evidence that the l j and the air be found compelling and specifically  can excuse me ms wade consistently testified that she understood ms johnson's complaint to be concerns that were operational in nature and related to policy and procedure never mentions securities fraud shareholder fraud violations of stocks or breach of wellpoint state contracts it is true that a lot of the testimony in this case that was a listed uses the word fraud and speaks of securities fraud or shareholder fraud but that is largely because by the time mr johnson's claim was before the a l j at the hearing  that was the essence of her claim and many of the questions focused on that it's not an indication that the a l j or the error be felt that the word fraud was necessary or that she had to specify a citation or anything of that nature but what she did need to do and what the l j and the air be found that she did not do is to connect the conduct complained of violated one of the provisions of laws covered by fox this court should affirm the error be this decision denying her complaint thanks very much good morning honors christopher robertson for anthem and obviously well point became at them so it's littered between them but they are one in the same for purposes of this appeal one issue that has not been address and i'll just ask the panel is we have the procedural question that was issued by this court with regard to whether this appeal was timely it's been briefed pretty fully both as part of the special quite  jurisdiction correct and i just wondered if the panel had any questions on that or you want me to address what you addressed with the others now i think you can go right to the american i will make one quick point on that though as we do think we heard the earlier argument about statutory construction we think the statutes are clear final is final and the say there's no real citations from the department of labor with regard to the reconsideration that we just they brief that they say it but there's no regulation or stab you know any statute or case or anything that says that there's no right for them to entertain a motion to reconsider actually our position is a little more little different than that it's not if if there may be the right to entertain a motion for reconsideration the point is it doesn't render the decision by the air be any less final for purposes of the sixty days so you would have a motion for reconsideration pending but not towing correct the same time that they filed a motion for reconsideration and have to file an appeal absolutely within that sixty days they file that appeal they reconsideration finally maybe they can come to this court and ask to tell it statutorily if they have not filed it within the sixty days of final order that's what the statute says that's our position you have anything to support that other than your interpretation and well i think you know the most recent case obviously is digital realty which was the supreme court case and it's really the st case that really interpreted sachs from a statutory standpoint and it was strictly construed are one of the main issues we you cannot follow a motion for reconsideration but the and there are other statutes and regulations it's pacifically says there is so the question of course we have we have held in many of the contexts that as a general matter agencies have the inherent power to reconsider and that may be true but my issue is it doesn't make the decision of the air be any less final so i can move on to the merits i think i want we are in a pet peeve good idea i think you asked a very specific question about subject of an object of reasonable mess to begin where on a standard of review with this court of a full hearing on the merits with witnesses at the ala jay that was then reviewed by the a a r p and the error be even  reconsideration denied reconsideration the ala j did determine both that there was a lack of subjective and objective reasonableness in terms of the protected activity in the region and factually each one has a different component to it the ael j determined based on facts based on testimony which is subject to an arbitrary and capricious view that miss johnson who herself was targeted who herself had been had a whistle blower come up against her had both retaliated against that was a blower and in addition had essentially changed her story multiple times about what it was she was complaining about initially saying well i would never do those things that i later complain in violation because they wouldn't be in violation this is the absence of testimony at trial that is credibility determinations made by an l j that the a are being looked at and affirmed and that this court should look at and for so which subject of reasonable misses on the facts on the credibility of the witness do i believe them when they say i subjectively came forward and thought i was complaining about something that would be a violation of one of these components of sox and the algae answered that question clearly no i don't believe you and that's subjective on the other hand object of reasonableness goes to is the even if we credit her testimony is what she's complaining about rise to the level that it would be a violation of a fraud statute and there was testimony again at the hearing that not just the word fraud that's really not the point the point is that what was being complained about was some issues with an internal system that was a tiny percentage of the claims process and that's all in the briefing it's in the record it was a couple one hundred thousand dollars out of millions of claims saying well this could be so that's the object of standard is even if i credit what you're talking about with this internal issue it doesn't rise to the level of creating a issue of mail fraud or wire fraud or securities fraud particularly in a company at that point like well point relative to its financial statements relative to its day to day operations so how do you read how do you read what the a a r p did did they say we agree that there was substantial evidence supporting the a o'jays farming's on the subject of belief say we agree with the a l j in so far as it determined it objectively or did they say both i can't quite count because it looks to me like they kind of establish that her belief that while points activity of which she complained violated socks was both subjectively and objectively reasonable that's in the decision on page four and then if you flip to the next page on page five of their decision they specifically say johnson's burden to prove or concerns credibly involved a reasonable belief of socks and then it goes on and that's where factually then they're talking about so they're saying we understand it's both and here factually we have both because a the l j didn't believe her when she says i said x and wade said use didn't never said x and b even if those issues were the issues they would not rise objective legal level socks violation i see amount of time if there's thanks so just briefly i find it odd that the department is now saying that mr johnson had to reference socks and her conversations with her superiors if that were the requirement been many lay whistleblower who have no knowledge and who would never even begin to weep be able to understand where knowledge of complex legal standards is found would ever be able to file us are being actually complained the very people the law is set to protect would for lack of  protection if the standard were such that a full fraud claim including evidence or reference to terms in the statute had to be presented before a whistle could blow there would be no whistle blowing there would be no protection in those more savvy more inclined to defraud shareholders would be incentivized for that lack of protection your honor it's the department's position that the words fraud do not have to be mentioned to sustain an action but there are argument is a largely based on weights testimony that mr johnson never used the words fraud you can't have it both ways either she has to mention fraud and has to go back to the statute or she doesn't in regards to her  objective standard miss johnson met her burden as stated before the objective reasonable standard is a belief is a standard evaluate it based on the knowledge available to a reasonable person in this i can take it you agree that for you to prevail here in this court we would have to far and that there was clear error in the fact finding by the jury and we're happy to reject it about rejecting these findings and saying not only could a reasonable person disagree about it but that finding was so wrong that there was no way we can let that  terms because the company actually was they paid a fine for so doing they changed their entire process is after they terminated her so it was objectively reasonable that she believed that something that was happening they later found was actually happening subject of reasonableness in her position your honor i'm sorry she just has to believe have an actual belief that the companies caught conduct illegal are fraudulent that's the very nature of it being subjective so placing the weight on miss wade's testimony rather than on mr johnson's testimony is a complete abus correspondence and the entire d nine hundred and fifty dollars system was causing good parts to potentially be in violation of the contract she definitely voiced to that but it doesn't matter how mr wade received it it matters how mr such a moving target because it is subjective but subjectively she met her mark and she was able to say that just based on what she believed up ject of lee she met the mark because they were fined for actually having committed