attention raises federal employee whistleblowers have a statutory right to bring de novo claims to the merit systems protection board if they meet the minimum threshold requirements for exhaustion before o more than a one phrase sentence in the middle of a of his complaint that doesn't refer to that particular if you will situation only with a one sentence that i am one back at her and held on failed to address the nepotism they were very well aware of which i repeatedly complained about because it would have a serious impact on my duties and those of my subordinates so in the middle of that complaint which i read pretty carefully we had one sentence i think you can which would suggest that there's any way to exhaust claim to it his complaint actually says nepotism four times but martin i'm not talking about where i mean i read the complaint to try to find anything in there about claim to and this was the only verbal these verbal complaints contributed to his discipline i don't have anything in there that these complaints i mean even added to the dod a big complaint that these complaints and the da to complain contributed to his discipline all i find is this one sentence which doesn't say any more than this and from this it seems you're saying that i'm limiting what the complainant can do if i force him to say more than that salute he can give some opportunity to the o s c to do something about it under the statute they must exhaust a claim of a prohibited personnel practice i understand it's a separate improper personnel action might be a separate prohibited personnel practice but each separate whistleblower disclosure or each separate theory of causality simply is not a separate claim so federal employee whistleblowers almost all of them are pro se before the o s c it's how i if i to read this complaint i wouldn't know what to investigate as a relates to anybody except as to the d o d i g complaint right i think any o s c attorney who does these for a living and has used to reading protest the minutemen automat you're automatically suggesting that what is being argued by the other side they're not up to snuff i mean what i'm trying to do is read this and say is there any hearing in here that they complained of these people is there anything in here that these verbal complaints contributed to his discipline is there anything in here that says the complaints and the d o d i g complaint contributed to his discipline there's nothing there's nothing to give some notice for that for the o s c to go off and do some investigation it's common for us he complainants to leave out disclosures to mislabel their complaints to focus on formal complaints they often don't realize the informal and internal complaints are protected under the statute but so always got to do is say well i know about be has to be a fact specific in crazy made on a case by case basis but the important point here is that it must be made under the correct legal standard which is does o s c have a sufficient basis to investigate oh a c complainant shouldn't be required to separately exhaust every whistleblower disclosure or every theory of causation they need or whistleblower disclosure then automatically the o s c should be charged with investigating every possible whistleblower exclosure disclosure whether mentioned in the complaint or not that's your argument well certainly if he had submitted the same complaint and then pursued an ira based on a claim of osha violation something i'm not talking about only complaint you missed that you didn't even hear my question if that i didn't say that i said you're suggesting that if they have one complaint on a whistleblower complaint they don't talk about any other in their complaint then o s c is charged with since they made one complaint investigate so here we have on the face because we have a d o d i g complaint based on nepotism they have and basis to investigate on any claim of nepotism that may come up during investigation certainly where you have a complaint that says i made it i g complaint on nepotism and mentions that other points in the complaint that they made internal disclosures of nepotism and that is those what it says but that isn't what it says counsellor once again it says they failed to address the nepotism they were aware of but it doesn't say he even complained to them about it it does this is i repeatedly complained of nepotism what he says complained about but not to them i believe it it does a list one of the subject of one of the agency officials to whom that disclosure that's the focus of petitioners compla i g could be that complaining about so that the protection under the whistleblower protection act for disclosures is extremely broad it includes informal disclosures it includes disclosures within the chain of command  excludes oral disclosure it includes oral disclosure so to and o s c attorney looking at that complain if you if you read i repeatedly complained about nepotism that on the face of it would appear to be a protected disclosure i because i'm a protection national because i'm not a noisy attorney i don't know it but they would all know is that your argument i think you have to look to what it was he does in whether it has a sufficient basis to investigate a particular claim and it's always going to be a fact specific case by case in craig but certainly where the complaint states i made even if they mislabel their theory of  even if they will leave out specific disclosures they're required to exhaust the prohibited personnel practice and that is a claim that a particular personnel action here in terminations was made in violation of the whistleblower protection act so you look to the complaint you would see disclosures that appear to be protected and you would investigate the underlying reason for the personnel action  so we would never really we would never limit ourselves to the petitioners theory of causality it's very common for their theory of course ality or their disclosures not to they're not lawyers so they're not seasoned at putting forth complaints we understand how to take what we are given and why not up with the statute that we walk under if you want to give you some time thank you morning your honor some a priest the court when did you sell on behalf of michael john i did want to very briefly answer your question very directly and briefly for this statement for which i repeated the complaint about any investigation would be one question what do you mean for which i repeated they complained about what complaints one question very straightforward and in that answer he would either indicate to the o s c investigator i complained internally to excellency or he would say i only complained to the i g so it's it's actually to answer your question very briefly it's a one question to mr john and it would be one of the first questions i'm sure the o s c investigator with us and he would indicate whether or not these were internal or solely external complaints he does indicate if you look through the o s c submittals that he had complained to the i g s yes and also raised other issues regarding perjury and that the tism in the workplace so i think it is fairly within the documented also if you look at how title seven and other remedial statutes that are similar to the whistleblower protection and hanson act it takes into account that ninety six percent of the folks who make these complaints at the ministry of stage are simply going online they're clicking the button that says make a complaint it does not give notice to the lay person that they need to indicate exactly to whom exactly when and to submit evidence it's very dangerous to i think the safety of this country but also to a supporter of protection in general to say you need to have all of your internal external disclosures and all of your evidence to support that so i'll leave that piece and unless there's other questions and move on to the standard of review the standard of review here at least for the issues of jurisdiction for  jurisdiction those are to know for review for the remainder of the issues that we are recently given the authority to decide these appeals which all used to be centralized in washington d c from your point of view is there any reason for us to chart new territory or depart from the standards that previously were applied in the  or well yes i think that this is just the basic legal principles where you know what things are reviewed to know what things what the standard review is that sort of stuff i think the federal circuit actually agrees that it's been over review for jurisdictional matters i understand that i'm asking you to just take a step back sir we have to adopt because we have no ninth circuit law are on how these things are view some other circuits have just said well the federal circuits not a good job of laying out the flame or do you disagree with i think it depends on which issue you're order so for example if it's the standard of review the statute states what that is under five u s c seven seven ok what he specifically do you want us to do a bit in terms of legal principles basic legal principles having nothing to do with the facts of this case in what employees if there's retaliation after the sation of employment they haven't actually squarely addressed that except in one case and they didn't address it specifically as we asking you to do here that was the kerrigan versus the m s ok is there any of the respect in which you disagree with their basic jurisprudence as it relates to the standard of review which is stated in again five u s c seven seven  three there are different decisions for which the federal circuit articulates it differently so i think that the federal circuit when it referred to seven seven zero three for the standard of review was absolutely correct where i think that the ninth circuit should depart from certain federal decisions would be where they add a layer in effect to increase that burden or standard of review because the statute says what the statute says and in in that regard i don't think would be creating any sort of split in the circuits would rather rather would be agreeing with certain federal circuit decisions that i think were rightly decided many of these issues as your hon know are cases of first impression in the ninth circuit and that doesn't include the standard of review what exhaustion is required under the o c and the third issue which is an issue  realize i'm overtime if i me finish answering machine to finish thank you is the issue of how when you have a personal action that flows from the adverse employment action and here to the barman two days later where the reason given by the army was that it was because he was fired later they said they had no reason at all but at least initially they said it was because of the firing where you have an retaliatory adverse action that flows from the adverse employment action that's also a case of first impression both the federal circuit and the night circuit and i would submit that the language of the plain language of the whistleblower protection hanson act with former employees would cover that additionally it's the same standard that is utilized under title seven case law where when they made that determination they simply had the language of former employees which is what you have here in the statute thank you counsel we'll give you two minutes for a bottle since we used a lot of question t good morning your honour's may please the court she mcburney on behalf of the united states and the department of the army and i want to say from the outset i am prepared to discuss any of the issues in this case but i want to make sure that i focus on addressing any concerns the court might have with regards to the merits portion in light of the fact that i'm sharing time with counsel for the systems protection board who will be speaking exclusively to the jurisdictional topic so with regards to the merits issues and i'm not sure how many concerns there are because there wasn't a lot of time spent talking about it during petitioners arguments but the merits issue really is a straightforward matter of did the administrative judge and there by the board abuse any discretion in a way the evidence and in this case  the evidence is clear if the answer is no counsel do you have any areas in which you disagree with the basic framework laid out by the federal circuit in terms of standards of review  what we ought to do in a case like this no your honor not at all our view is that the ninth circuit should apply the federal circuit law in this case there's no reason to create any sort of diversion that we would have to adopt it because  and i was encouraged actually to hear from both petitioner and the office of special counsel it doesn't appear that there's a desire to create any circuit split by anyone in this room and we certainly agree with that that the federal circuit law is appropriate in these cases and should be adopted in full  by the ninth circuit with regards to the merits decision was largely based on credibility determinations both this court and the federal circuit have held that those are within the very sound discretion of the administrative judge we see no reason to disturb those we find that the record in this case adequately supports the merits of germination that was made by the board in this instance the other issue that was raised in the briefs with regards to the merits was the issue of the exclusion of certain evidence and once again exclusion of evidence is something that is well within sounds question of the of the board in this case evidence was excluded because it was entirely irrelevant to the issue the court was looking at which was was there any sort of retaliation as a result of the october two thousand and twelve inspector general complaint and so we don't see any error of law there is as well and so unless you're on or have any questions about the merits portion of the decision i just want to answer a couple of things that were raised with regards to jurisdiction and and two points that i really want to point out number one that something was said with regards to when you're dealing with paper headed personnel practice the prohibited for snell practice is the action taken against the employee in this case the terminations of the bar meant but the disclosures are not themselves the issue and so you can have multiple disclosures that aren't properly identified and that's simply incorrect a prohibited personnel practice is not the equivalent of a personnel action and so you need to have two elements in the context of this case you need a prohibited disclosure and then you need a personal action that is a result of that disclosure if you don't have the disclosure otherwise you just have an entirely permissible right not i have to say and it may be your answer to this but i read this complaint quite differently than apparently judge smith does it looks to me like about repeatedly complained about because it was having a very serious impact on my duties and those of my subordinates it goes on to say you know so and so condoned it and he was appointed  to investigate it but he conducted a biased and one sided investigation knowing full well both in his position i'm sort of paraphrasing and his personal involvement with nat partizan that the other accusations were you know regarding the contributing factor elements of the appellant's ira appeal is whether n h was aware of the appellant's disclosure not whether he was aware of the wrongdoing that was the subject of disclosure and so in this instance i think we really have to retaliation and here we can't know bad until there's an investigation and when sometimes that may be the case a but what's important is looking at the complaint and figuring out how would always see have been expected to look at that and what did they think they had to look at and well they would say hebrew peter gleick come by and i think fairly to my way of reading he says three people failed to address the many partizan that they were aware of and which i had repeatedly complained about i read that as saying i complained to those three people now that may not be in fact what happened but it's certainly on first reading how i read interpret that and so why wouldn't you say ok tell me about your complaints to a b and c about nepotism what when did you say and you know tell me more about that this is a two issues with that number one i think it's important to look at the context of where that sentence appears and what he appears to be describing is the background that went into filing his inspector general report and the issues that were addressed in that report and that's one way to read it but that seems like a very narrow you know and understand where you to read it because as i say it to me it looks like there's about a quarter of this are twenty percent of it that's all of this chalk about nepotism and his complaints about nepotism right and i think i think the problem is just saying well i complained about nepotism particularly in a context like this where it's all in the context of this and twelve complaints the problem is when overseas looking at this they're going to say ok there was an inspector general complaint filed it addressed nepotism there's a lot of discussion of what went into that complaint and what was complained about and so the first problem is allowing that to be sufficient to exhaust any disclosures about nepotism at any time no well if it's prior to his terminations to these three individuals what were his specific complaints to them and when did he make them th family hard i think the problem also your honor is we're not dealing with a situation where plaintiff is arguing it was air to find that he failed to exhaust complaints made to these three individuals that you identified in that portion of the complaint i think would be a problem if that was the argument as well but but that might be a closer call here he's saying it was error to exclude on the basis of exhaustion allegations apparently made to ms williams in the presence of mr hamlin and that is simply logically inconsistent with what's in the complaint number one ms williams is not mentioned anywhere on the plight of the complaint was supposedly made to her in the presence of mr hamlyn and yet she's not even mentioned what's mentioned is a complaint at some point in time or multiple complaints it's not clear made to three different individuals and that's certainly seems to be a different complaint to spend if they had asked those individuals one of whom was present at the same meeting that you're talking about think would have found that out and could have dealt with and on the merits easily possibly possibly not i think in this instance they probably would not have found it out because if they would have gone in asking about the inspector general complaint asking specific questions relating to what went into that complaint which would have lasted anyone could have easily just asked the question that opposing counsel said well you talked about repeatedly complaining when when did that happen right and the other thing that i would say is although i think it's important to look at the text of the complaint and say is this something that we reasonably put on notice of what they need to look at and the answer was not only no we know as a matter of fact that when i would see looked at this their determination was as a matter of fact they viewed it as only looking at the inspector general report  know i guess i'm i won my my chance to just ask my my question really was given what i'm snowed supposed to limit these allegations how far do i go in making them specific or how far i don't and i've tried to find the cases to make that way and i appreciate the judge graber is already spoken to me as to how i feel on that issue i'm not sure i do what bothered me was how counsel led me down the road to where she led me because you adequately suggested that this person to whom they now want to make the complaint about the general isn't even among the group but the bottom line is how do i decide what limitations to make because i've read the i've read what's happened in the federal circuit i've read what i'm supposed to do that's why judge grader's question about do i just follow what the federal circuit suggests or do i not follow that's the ultimate question for me what mentation spic has it seems to me that if i'm looking at a neo c complaint i can i have many times argued that they didn't make that particular complaint to the e e o c and it was an exhaustive than i've won but i don't know how to do it in this particular matter because i've never looked at it before and that's what i'd like your help with sure and i think there's an important distinction when you're dealing with the e e o c complaints where you tend to be dealing with discrimination more broadly and a statute such as this one where you know what's really required whether the plaintiff has made a non frivolous allegation of a protected disclosure you need to know what that disclosure is and then certainly to determine whether that disclosure if it exists is a contributing factor then you really need to know what the disclosure is and so i think that's why it's important you need to have some specificity and the word standard is correct enough to put you know reasonable grounds to lead to an investigation that will get to the bottom of it and again in this instance not withstanding the arguments that  the council will look at this and know to look for more of the letter from a c make clear they read it the same way that certainly that i didn't and i hope that perhaps you did i expect so which is this is talking about an inspector general report and that's all well i know we have to look at the specific facts of this case but i'm curious how common or unusual is it that the office of special counsel comes in and some advocates to support petitioner on these types of exhaustion issues is that unusual or common i'm not entirely sure how to answer that to my understanding it's not particularly common but i'm not sure that would be particularly informative either in terms of their standards when they come in and when they don't that's probably beyond what i'm able to we'll hear from indeed as a communication so a communication made in october two thousand and twelve about nepotism and i g complaint is a separate disclosure than a communication made in july two thousand and thirteen the general williams about nepotism what he identified in the o s c complaint was that he believed he was fired for the disclosure made in october two thousand and twelve that's a separate theory than disclosure in that he was fired for that's not that's not correct it's a two question inquiry into the second question that's more essential it's not just that what do you mean by repeated it's do you think you were fired because of your other complaints o pretty personal practice overseas role is to receive specific allegations of whistleblower presell which is a i made a disclosure and b i was fired for that disclosure so it's not just identifying what do you mean i repeated complaint it's identifying also that you believe you were fired for a complaint outside of the i g complaint and as my colleague pointed out when you read the entire complaint objective lee it does not look like he is raising any other allegation that he was fired for any complaint of nepotism outside of the to be a difference between the us c and the american protection board it may reflect a difference between current policy of oh a c but what's important and what my friend always he did not mention is that  he actually has regulations on what is required in an o s c complaint and there are far more than what they represent to this court overseas regulations which are five c f r eight hundred point one requires a precise date of the disclosure precise individual to who if you're not a proper different or proper respondent here but if we were not the first one of the government would still be making the same arguments like they were so they were we would still be asking if you were from the decision that the board and i have jurisdiction over the claim that he keeping with circuit law or not the mccarthy case which is a federal circuit twenty sixteen case did use the standard that we are urging here which is reasonable clarity and precision sufficient basis to pursue an investigation to lead to corrective action that's so we're not asking for something that our recent federal circuit has not already determined i think that your honor has hit the nail head when you had indicated that twenty percent of the complaint indicated issues of nepotism and had indicated that there were repeated such complaints and he also raised the fact that he was fired and barred i think he did provide reasonable clarity and precision in terms of the  july twenty fifth communication hamlin was in the room that communication was also made to him he was specifically named regarding very briefly the issues of credibility the army indicates their standard that they would be virtually unreviewable well that is just contrary to five u s c seven seven zero three if you look also at the whittemore case which is a seminal case in the federal circuit it discusses that you must look at the evidence  aggregate and all of the information must be determined meaning you you simply don't accept at face value a credibility determination made by a judge  look at the other evidence to determine whether that was reasonable or not and can in conformance with seven seven zero three in terms of the o c closure letter o