may please the court my name is aaron zot and i represent petitioner atlanta mcgann in this case i am here with my co counsel george to say the purpose of the whistleblower protection act is to encourage disclosure of wrongdoing to persons who may be and a position to remedy it whistle blowers are encouraged to make such disclosures by providing protection against retaliation for making such disclosures the familiar with the whistleblower tell us about why your ten she became the chief of staff which was a corollary duty in two thousand and twelve she became a g s fifteen program manager and maintained her chief of staff duties until mr longshore came into an acting assistant director capacity she was both of them and two thousand and twelve she was both a program manager and chief of staff significantly on july th when she made her st disclosure of over nine million dollars in cost and efficiency is that the her removal from ground transportation do it is upon her nd audit of cost efficiency is at the los angeles field office and her nd removal from ice air operations and auditing all together following her audit of argument is they didn't consider this they didn't deal with it busy they didn't know it there seems to be a fair amount of discussion about those issues right not exactly so there's a fair amount of discussion about three personnel actions the st being her reassignment from the chief of staff position being assigned selection memos and not being selected as chief of staff of the transportation planning and acquisition unit however the initial decision is silent on the two claims miss mackenzie removal from ground transportation following her audit of the los angeles field office and her subsequent removal from auditing duties altogether following her desire on page twenty  there's other language with respect to the loss of auditing work on page a twenty four least how can you say that it's and as to that the fact that miss mcgoun was removed from auditing is not in dispute and that's corroborated by miss cain's testimony that she just referenced and mr mcmahon timmy's testimony as well however the administrative judge made no findings with respect to those claims at the end of that section in her made her st disclosure she was on the same day removed from the chief of staff position although the administrative judge credits mr robbins testimony that it was typical for assistant directors to bring in their own chief of staff w absent from her decision is the fact that mr longshore was acting in that capacity for only four and a half months and he himself testified that there is no protocol for someone on a detail to bring in their own chief of staff there is no documentary evidence supporting this megan's removal from her chief of staff position and this court and miller correctly recognized that with these types of reassignments you would assume that papers would attach all we have with respect to miss mackenzie removal from a chief of staff duties as mr longshore is uncorroborated testimony that prior to his arrival he was already working to plus up personnel wanted him and i thought that was a that's right i'm not asking this court to reweigh the administrative judges credibility to determination but this court can decide how much weight to give that credibility determination when looking at the record in the aggregate here because i only understand the this court must review that finding to determine whether substantial evidence supports that decision and here the initial decision is silent on the countervailing evidence that undermines that testimony and as mentioned just substantial whether the agency met its steep burden to prove by clear and convincing evidence that it would have removed in this instance miss mcgann from her chief of staff position absent the whistleblowing but you i still don't have an answer i don't think testimony is not so clear mr robin said that it's typical for an assistant director longshore testified that there is no protocol for an acting assistant director which is what he was he was only there for four and a half months there is no documentary evidence supporting miss mackenzie removal from the chief of staff position so looking in the aggregate in miller for example the court found that they ask you i'm sorry i'm here up to you because i think that i see testimony that contradicts what you just said and i just want you to explain it to me so this is on page eight thousand five hundred and thirty three dollars and it's the question is would it be routine or would it be unusual to change chief of staff when an assistant director a new assistant director comes in whether an acting in a permanent capacity and the answer is it's not uncommon i think every manager that has a chief of staff would wonder in chief of staff well why isn't that enough where someone on a detail so that testimony conflicts with mr robin's testimony that it was typical for an assistant director to bring in their own chief of staff but in miller at this court in reviewing credible testimony found that the government could not meet its steep burden based on conclusory testimony unsupported by documentary evidence with no comparatives so even if this court finds that that testimony is credible and it was typical for an assistant director even an acting assistant director to bring in their own chief of staff what are these compared to hers in the sense of fair comparison because you've got multiple people saying that new directors generally smike their own chief of staff that would that's possible but this court has recognized that fair testimony from the deciding officials is only minimal support for a personnel action and the court muster a view the record in the aggregate here the only documentary evidence suggesting that mr longshore was planning to bring someone n is nothing no e mails no memorandum and didn't only lurch say that there is no requirement that there be documentary evidence with their suffici documentary evidence i mean no it doesn't say documentary evidence it's all a lie that's correct this court did not read in a crowd ration requirement to testimony but did clearly state that bear testimony in and of itself only provides minimal support for personnel actions and the court must look to the other evidence of record the chief of staff position it is your least strong argument there are several other points that you made for example that they refused to give  kamen and was the deciding official responsible for the later personnel actions mr robbins was in her chain of command and was the approving official on the directors of war on the director's award we're well into our re please the court the court should affirm the administrative judge's findings of independent causation because miss begin has not satisfied her burden on appeal of showing that those findings are on supported by substantial evidence instead picture how are we to deal with the who we are and convincing evidence measure when we look at the whole picture of how the government treated her after she mad majority of the personal actions about which she has complained including the change in her duties were carried out by other management officials and there was no evidence to show that mr robbins or ms pinero had a hand in the assignment of day to day activities or other facets of miss million's duties robin who was in the chain of command wasn't he yes your honor but just because somebody is in the chain of command doesn't mean that there's evidence that they had a hand in the actions about which the employee is complaining so for instance in car there was evidence that there was someone in the chain of command who had a motive of bias of whistleblower bias but that they were too attenuated from the actions about which the employer was complaining for there to be a lack of clear convincing evidence to support the find is the favor of the agency so while in some instances it's enough to show that someone removed at bias you still rather you still have to show that there's a nexus between the person who has the bias and the actions about which the employee complaining so the chief of staff position for instance your honor recognized and i think your protest recounting the testimony that the decision was made by mr longshore before he took over as acting chief of staff there was testimony that mr robbins had to approve the addition of a full time equivalent to the office but not that he had a hand in selecting who would serve in that role or that he was a catalyst behind the change the chief of staff and frankly move on from che that's that's the easiest for you i understand your honor but it's important to emphasize the change in chief of staff because the other changes in miss million's duties flowed largely from that change and duties and changing position so she went from being the chief of staff who had specific chief of staff duties under assistant director hellwig who then retired then you had four acting directors or acting assistant directors coming in over the course of a years time none of those people were familiar with miss maggie and miss began was no longer chief of staff she was still in the front office but those people who did not have a hand at least after she was also a program manager that's right your honor talk about that what would your honor like to hear about it she had as a program manager her duties would on the agency organizationally and so they were people who had to do things if they wouldn't normally be asked to do missed begin was asked to do things like right position descriptions and do things more of of a human resources nature because katrina came viewed or is a subject matter expert on those things and didn't trust anyone else to do it especially on short time so they are was a crunch to close the kansas city obvious and replace contractors with government employees and they were having a hard time getting all the hiring done in time so this is a continuum of of change in duties and assignments that all flow from her being replace is chief of staff what the record frankly shows is perhaps miss big game was up managed to the best of her abilities a ferry to manage somebody well as not the same as whistleblower reprisal so yes we made a showing with respect to each of the facets or discrete facets of the change in her duties because that's the way missed mcginn framed her a claim stand down from contacting the contracting off as representatives she has made arguments in her briefs here and and to her paid and in your papers before the ministry of judge that she was told the stop audit ng that's not what her testimony of us are testimony it was that she was told to stop contacting the contracting officers representatives there were periods of time were she do not have audit ng work and consequently the change earn duties amounts to a a personnel action that is fission to amount to a prohibitive personal practice if it's motivated by whistleblower motivated by whistleblower animists mr robinson ms pinero were not the people who were assigning her work after she was replaced as chief of staff she hasn't alleged she hasn't argued on an appeal on appeal here that robin baker longer testified that katrina can testify to that moment in your testified to that all of the management officials and from mr robbins did too and miss mcginn is saying there are alleged inconsistency in their testimony that render their entire testimony implausible and without those two management officials testimony you cannot find that any of the personal actions that were taken were anything but whistleblower retaliation and in order to do that the court has to jettison credible testimony from multiple witnesses which this court is as loathe to do so i do want to emphasize one thing ms mcginn keeps referring to these changes and duties as though they are discrete claims and they're not discrete claims the way that she presented them in her briefs to the administrative judge and the way that she's presented them here is to refer to them as a single personal action with various facets if the court looks at pages fi presented to the court that this is a continuum of events that occurred all flowing from her change over as chief of staff she's also repeatedly referred to the changes in her work duties as reassignments but it appears she's doing that in  separate roman at dealing with reassignments so again this is not a case like miller where somebody's experience repeated significant changes in assignments over a span of several years was told to sit on a couch with absolute no work to do for eight months although it is true that miss megan may have been assigned h r work the government has provided no evidence explaining the pattern of removing this weekend's auditing duties following each disclosure or why chris mcmenemy the only other wh blower in ice air operations was similarly it removed from auditing after supporting miss mackenzie findings the initial decision is zero evidence that she was removed from auditing both there seems to be conflicting evidence here positions some saying that you know her duties were just changed with respect to our knitting as opposed to in terms of miss mcginn testified that in october of two thousand and thirteen she was told that she could no longer have direct contact with the contracting officer representatives because their audit findings were upsetting them the following month she was told to stand she was allowed to continue to do our bit she wasn't allowed to contact the contractors until the following month in november when she was told to cease auditing altogether missing and is still a program manager but she has effectively been told to sit on the couch she is no longer provided with raw data and she is not performing as this court recently held in smith v general services administration the initial decision must include an in depth review and full discussion of the evidence that go to car factors two and three here we have none of that discussion this court is otherwise at a loss to determine whether substantial evidence supports those findings for those reasons the court should reverse and remain and for appropriate corrective action can you give me a record cite for the testimony that says that she was no longer a that record cite is at appendix five hundred and four and at appendix five hundred and ninety seven she talks about the only two audits that she has been asked to perform sense in late two thousand and fifteen and january two thousand seventeen in which three people had reviewed the audit before her she was essentially rubber stamping someone else's work she was not provided with raw data and those audits are completely dissimilar from the work she was performing