the panel has before it three cases for oral argument in addition there are two cases being submitted today without well argument just on the briefs those cases or goodloe versus united states postal service appeal thirty two seventy one from two thousand and eight and boras versus merit system protection board appeal thirty three twenty five or so from two thousand and eight before turning to the argument list court wishes to thank seventh circuit district judge senior district judge richard cody who once again has come to sit with our court as a part of our ongoing program to have visitors from both the district courts and more recently from the circuit week could we could we suggest to you ms hill that we probably are quite familiar with the facts and the and the issues and that you might move directly to the core of your argument one of your contentions as i understand it is that a motion to compel was wrongly deny but the reasons given by the administrative judge included that it was untimely file d do you agree it was a about a week late and and as i understand it that no explanation or excuse was was proffered and so what is your  basis of saying the judge had to overlook the tardiness and and allow it if there's something we don't know yes actually and i should say when i started that i wanted to reserve and eight minutes for a month but that decision the excuse i guess or the rationale that was offered to the judges that we were waving his ruling on the motion to dismiss the agency had concord there was a little bit about often there are several reasons but the ones that mattered were are they were not going to produce these documents because they were quote irrelevant if the motion dismissed was granted so my thought was let the judge will rule on the motion to dismiss and then that would mean the agencies argument meet their motion to compel they would just produce it i waited about a week was in communication with counsel came clear we were going to get a quick producing the documents and also that we would need to talk about producing them subject to a confidentiality order on a broker some argument about whether you already had nearly all of the documents and that therefore you only wanted authenticated copies as opposed to an authentic  box on them that is not true and then fact they would not be able to make that argument they don't know what i had when i did not have it is true that we had submitted approximately fifteen hundred documents to the department of justice however in point of fact those documents had to been as i recall no i could have figure out looking at the record what documents were part of the proceeding below and i had a terrible time figuring out is there a list anywhere of what documents were proper that the content of the evidence was excluded because it was irrelevant because it pertained to the actions of the private not producers and in fact around her i have stated over and over and over again to the point that i know one way to the judge no your honor this is evidence witness testimony and documents that pertains to the malfeasance of mr friedrich the decision maker in this case but i was not allowed to present any evidence that already ha and i was not allowed to obtain any evidence that i knew existed the reason i hear it existed is because i represented the god that created the paper trail of what mr brady should do in that he wasn't doing it and then exist and he specifically what it was deficit of fifty five million dollars or so that you say with by palli milk but not paid and that that one won't be tolerated by the various agriculture officials and particularly yes and i want to be clear mr felder did not suffer retaliation for making that disclosure the retaliation did not start until he said what mombasa is supposed to be taking clearly supposed to be taking action to remedy this and to investigate this he's not only not doing it he's telling me not to do it he's telling me he's going to fire again and perhaps subject me to criminal prosecution if i do it this is the kind of evidence i was not between freedom correct it all happened very close together it happened between december of two thousand and four and july two thousand and five where the government argued that at the time taken totally different that he started back in two thousand or two thousand and one with it with a blower type complaint and it went on steadily for six or seven years and that i don't know action was taken against them until january of two thousand and seven and th really did have to do with the actions of private mill companies and my fellow did not suffer retaliation during that period it was only when he started reporting the mr freed lease failure to take appropriate action that he exactly you say was not allowed to come along that line of direct threats to your client yes we had we had an e mail for example one example that i know of as i had an e mail and which mr friedly explicitly said to my client you know if you take this it apart you know you may not take this department of health and then there was a note from a conversation tough and conversation with mr fraley that that said you know do nothing e mail you may not do this i had a copy of this document that e mail was followed by another document that said if you go outside of this agency with this information even to another government official which it is clearly authorized and the regulations you will be terminated and you will be subject to criminal prosecution and you tried to introduce these documents again you were excluded yes now  colloquy in dealing with that letter now did you i didn't see that letter in the record did you offer that letter into the record i got cut off pretty quickly oh no but you know i had t gathered throughout the record and as i understand your theory it is relevant under the cobra ray factor having to do with the strength of the motivation no one of the recommending you're deciding officials could be motivated to retaliate yes so were the case is it was relevant because ray makes it real yes in the government you seem to be you know that totally outside the scope of the need to prohibit me from introducing any evidence that they are subject matter expert determine was confidential proprietary the chat as i recall to knowing that motion in limine the or at least held it in abeyance the judge said at the beginning of the hearing i'm going to presume that this he's a whistle blower only going to hear testimony today regarding the agency clear and convincing proof that they would have made the decision anyway that was the limited  we get into the waiting of the evidence and the judge ruled against me saying that they had all kinds of evidence that this was a legitimate business decision and i had nothing having to do with the decision makers most of that agency did to decide so help us understand why it would or wouldn't be right well and i would like to add that even if we were to assume that there was some abuse of discretion in these eviden yes i believe at least there is a difference so that even if an agency had impled justification for taking a certain action if you would in isolation if the actual reason you mean it could be proven well to get rid of somebody then that would be retaliation even though they had just the case in the motivation to recount no your honor in fact it might be nearly the opposite that the question whether the agency would have taken the same action even in the absence of that was laura disclosure is it sometimes treated as  inquiry after the appellant has already made a prime case now as part of that crime case and what was assumed here by the administrative judge is that the whistle blowing did in fact provide a reason for it link whatsoever between a motive to retaliate and the decision to close the office the the administrative judge by assuming the contributing factor acknowledged the existence of some retaliatory w made and virtually always sustained it looked to me but maybe i'm wrong you can help me out that would have been relevant because it went to motive and no of the argument misspelled kept breaking and the judge said no not really bent i s and found forty three total objections fifteen of which were overruled the administrative judge asked the question south that evidence withdrawn in other words the evidence came in many of the remaining questions some objections the question went to the truth of the underlying disclosure what if you are really broken motivation because the the administrative judge had assumed the truth of the underlying disclosure whether mr felter had proven or had evidence to really show that milk producers were violating the law that the agency had engaged in mismanagement all relates to whether there had been a protected disclosure made it's a separate question what mr freeh the deciding official for the removal what what intentions he had much less were if the allegations are true and they're serious i might be hugely word there where i might have a certain brand of mine will be needed to retaliate against that person to try to frighten that person they're not going off keep quiet or and that may be the case but it would it would require the the hearing to have delved into the truth of those underlying allegations that's and leaving for later assuming that the agency can't make that showing the truth of the disclosures did the official engagements management did the official not engaging the management i mean yes there is some some logical overlap between all these things just as there's that overlap between the existence of the contributing factor and this one race factor but or car factor whatever case you happen to be looking at those factors importantly good mood among the partner and so i wanted to be able to put that in and i was blocked at every turn tom and you seem to be saying well it wasn't properly because maybe the grove and i think no your honor and i didn't mean to give that impression when i was saying it's not a point of the government's proof i was not intending to make a point about how the administrative judge conducted the hearing but to make the larger point that even if this court would have reached you're sitting in the seat of the administrative judge would have reached very different conclusions on these evidentiary rulings which of course it's not our standard of review here but even even if mr belcher had proven a significant motive to retaliate the evidence of the legitimate reasons for why the government had to close the knoxville office and consolidate it with the  overwhelmingly it would provide substantial evidence to support what substantial evidence is not really a test when you're talking is it when you're talking about the foreclosure of proof you know you can't say well it's true that i know this isn't exactly your argument but nonetheless to the extent that it is you can't say well you know it's true that a lot of relevant evidence was excluded but nonetheless there was still enough evidence left to provide whether there's prejudice correct that's right although the test is not that there's no way that it would have had an impact on the outcome it's that the the appellant has to show a likelihood that it would have changed the outcome but we're talking description but perhaps that's thousand and five now at that point in time the district court case had already been filed and it was still approximately well that's not an e mail concern of mr freely throughout was that the documents that mr fellow soldier had access to are provided for milk producers to the government with an understanding both regulatory and i believe stashed or in some cases that this information would remain confidential and mr friedly was informing mr felos holter and reminding him of the duties to keep information certain information from ill producers confidential in the proper uses and that ok wh before the administrative judge yes or if this were in connection with the duty case yes your honor how do we know because we we do not have in the record evidence that was not admitted we have in submitted it does not summarize there's no summary in the record post hearing what what came in and what did not come in you know one of the problems i think in these administered hearings and because it's pretty puti true in my experience with the board is that there isn't really a formal process as there is typically in a district court in which you move the admit you mark and have that piece of evidence or identification you move its admission that the admission is ruled on and if it's ruled excluded it remains part of the record on appeal to the extent that you want to argue that it should have been admitted but the extent that it's made it becomes part of the body of evidence that the act minders who is to decide on now i don't see you telling me that this document was admitted into evidence by the administer judge or otherwise was let me put it this way it was not excluded you i don't know for certain i wouldn't be comfortable making that representation as one doctor but i would like to point out that the administrative judge heard evidence of mr freebees knowledge of the disclosure document in which he told me that me you keep you can't qualify with the words on the page you can quarrel or quibble at least with the testimony of the interested party right when you're running from a document that that supports you than your own testimony as a abstractly to be the case but that doesn't necessarily tell you anything about the moments of the sentiment that's underlying the assumption that one of the factors that it's important is the strength of the motivation if somebody has a very strong motivation which has been expressed in very strong terms that that colors one's view as to whether maybe it was possible that the steps that were taken against the person were in felt very strongly about this matter now that's why i'm really concerned about whether this letters and in the record or not with before the adjudicator if it was then what you know what woods whatever it was committed if it wasn't and if it was offered but refused then it seems to me there is something of a problem and if you  filed now you were about to argue or think or maybe you actually didn't even know testimonial or documentary evidence was wrongly excluded only a minor didn't rise to the level of abuse of discretion and i thought you then were beginning to go on to say and even if it was an abuse of discretion it didn't matter because it wouldn't change the outcome here because no harm has been shown b paganistic motivation by the actor in this case really doing and the question then the documents would seem relevant to raking in that assessment calibrating the strength of the motivation then how can you so confidently say well i wouldn't made any difference for several reasons the first being that the administrative judge did acknowledge that complaints against government officials were part of this but provided additional reasons which which will check that the disclosure is really centered on the private mail producers and mr felter zone file some of them to the administrative judge summarized the disclosures in that fashion that come to light and in effect of way again i don't know if that's true or not but but it is very hard for me to understand the government's position here one extent of the case law car factors are factors and there are cases finding that two of the factors strongly outweigh a third they can go in all different directions and there have been at least one court case which i'm aware of they said that the discipline itself was already the misconduct itself was so obviously wrong and needed to be corrected they didn't have factors in really matter even if there had been a really strong motive so these are these are all factors that went to being because i'm curious with him for something unrelated to time that does the fact that there was a proper reason that he could have been fired  protect me well both my own memo admitting that my we then was angry were unrelated to the time card i mean that i'm guilty of retaliating against him here i think that could come in this case the law firm make a showing by clearly convincing evidence that i really would be wired for failure to fill up the time sheet not that i couldn't or not even that it was an absolute firing offense a right to remove mr felder for failure to accept to resign meant it's not the end of the it's not the end of the inquiry it's why the administration judge went on to consider these were even the question whether the agency had a legitimate what does answer the question is looking at the reasons that the agency explain for why it took the action separate and apart from the protect disclosures and those show quite strongly that in this no quarter with only two offices and the smaller of the two offices operating in them at a deficit and not producers consolidating in many of the other problems they were facing they would have consolidated the office tended to do was i attempted to elicit testimony from a witness with regard to the contents of this e mail as i recall and i'm going from memory the objection at the time i can't remember it was relevance or whether it was it contains confidential proprietary information i got both in quick succession but i believe it was rabbits and i was not able to introduce this document because of the same objection i problem that the court referred to it was a part of the administrative record which the judge would have had access to it was never introduced into evidence that my understanding is that if it's in the initiator record stricken from the administrative record have established our status as a whistleblower either through assumption or through evidence the judge or the agency has to show and the birds on them by clear and convincing evidence that they would have taken the action anyway and then the race factor shares three things they consider the strength of the agency's business justification the strength of the money to retaliate and how other people simply situated to mr bell holder were impacted by the decision the judge in this case i was looking at the  spent six pages talking about how the agency offered lots and lots of evidence pertaining to the business reason for it the only thing the judge had to say about my motive was assuming for the sake of argument the appellant made one or more whistle blowing disclosure center on the actions of private mill producers not government officials were over although the hell it does continue that government officials should have taken remedial action against these producers the central focus of his complaints is that adulterated milk was placed on the market that was in fact the central focus of his complaints from two thousand and two to two thousand and four but from two thousand he suffered no retaliation but from two thousand and four to two thousand and seven he's like my boss was supposed to be doing something about this and and for that he suffered retaliation and it is that evidence that i was precluded from putting it the reason that this is important and affects my client substantive rights is the judge was required to weigh the substantial evidence that the agency put in they would have made this decision against evidence that i would put into the record about the motive to retaliate because i was not allowed to put my evidence on motive lose your voice in the banking thanks for the tip although we have a good system so it probably works anyway just to make sure on page six eighteen and six nineteen of the joint appendix was questioning mr knew all he was the chief of were operation he testified in the federal district court case or actually he submitted and that's that and the federal district court case they he was personally involved in the affidavit and the judge miss tucker objected on relevance and i said your honor i'm about to impeach this gentleman's testimony the relevance is his level of involvement and decision to close a non school office this was following a statement made by mr knew all that he did not have anything to do with the decision i attempted to you know submit this affidavit and the judge said also stay the objection my response  get it in it's exhibit one declaration of william newell paragraph nine so there is one concrete example certainly evidence is relevant and we had an affidavit in the appendix it is no it's not because it's not part of the record but this is this is what i ran into that the court referred to were i'm attempting to interview stock units and i can't even get them in the record there's no mechanism for me to do that and what is the pertinence of mr new rules investigation he engaged in a conversation with my client that discussed openly the potential closure of the not small office three he participated in the decision to close the well meaning tiring agency was involved in the decision and everybody agreed on the way up to the secretary of agriculture then your case my case would be weaker and i would not want to make that case no my my  newell was testifying at the time that that he had no involvement in the decision ok and i had an affidavit from him saying i approved the decision to close the office and so the reason i was offering that testimony was merely to impeach mr newell's credibility at the court the reason i bring it up this example at this juncture was