terminated and in the process of defending his case for the mis cutlets misconduct ministre of misconduct character we had were trying to allege a whistleblower protection whistleblowers unfortunately now are the what the government says is that you are you and your brief that he was retaliate against because if his testimony in the government trial against his fellow officers which is obviously a serious allegation the government says that the that issue was not raised or and it's been wait could you address that question there does seem to have been some testimony in paris but it doesn't seem to have been raised at the pre hearing confrontation well we disagree with the government's position that it was a way that the pre at the pre hearing at the hearing conference number one this issue because of the way the m s p p administrative law judge handles its proceedings has a lot counsel on the issues and the case our position was that mr gilbert go that he has had a whistleblower protection clause because he had submitted in writing a memo to the district director immediately after the judge and the record that he had complied not only with the written only ten of the whistleblower but also with his testimony being protected the judge says that judge my personal opinion misinterpreted the such and says if you do not show me that the writing complied with the whistleblower provision we don't get to the issue of whether his testimony he she can and tied them in together when the statute says it's two separate it's two separate with it could be two separate ways of invoking the whistleblower because the writing to not complying is his testimony at the hearing was not also protected and her rationale prior to start of the hearing was that she he was obligated like the position the government is taking that he was obligated to disclose and testify that well i position is that he gave a memo and it we had been given a complaint hearing with the statute to indicate how what facts substantiated our position  whistleblowing play and it seems to me the poor country accepted your position and then dealt with that but everything the board dealt with the zionists as i recall had to do with the member that is correct so when you went from the a j to the board and raised the argument that the a j was wrong on the whistleblowing that was confined was it not to the memo whistleblowing issue and didn't involve the testimony she's right about that in that regard you are correct you're on a case so why isn't that kind of all over because if we had been given a substantial compliance hearing by the judge and allowed us to introduce the evidence and our position agree with you and that's why we're raising it your honor but that the same point i position is that it is they two prong test to determine whether it blew the whistle blower protection should apply if the judge takes a position like she did in our particular case is disclosure to to protect his coworkers no he was not wrong doing did he just close what was he was he was called as a witness that's not the same thing as this going to an appropriate official and reporting wrongdoing well there is a problem public policy issue here your honor that i have to address in that way by answering the court's question this way the whistleblower act encourages public employees to disclose wrongdoing at the time of the that the employing the site to disclose the wrongdoing what wrongdoing did he did close that was outside the normal responsibilities of his job other than just giving a report what did he disclos whom that was wrongdoing well he disclosed the wrong doing of them mistreatment of the undocumented alien to his immediate supervisor he disclosed he gave a report that that rights of an undocumented alien and how is this testimony of protected disclosure well he was subpoenaed to testify he told the truth it was presumably information there was an indictment against these  already known so how does that constitute a protected disclosure well had we been allowed to present the whistleblower issue it is protected because of the course of conduct that was undertaken by the print management of then legacy ins against the respondent which started the course of that and to try to terminate him and we would have been able to tie in and how his testimony the fact that he testified one of the issues that he was terminated for to san antonio at that point in the pretrial preparation for the prominent case mr rather guess this close to the assistant u s attorney who was handling the case no i did not at the time unfortunately because of the  you're saying because he allegedly in a subset supported by substantial evidence improperly unplugged the items that you're saying his disclosure of the fact that he testimony that the asked that dealing with his conduct in connection with the i don't system or his testimony with respect to what the other officers we believe that it covers would be other officers did that it is protected because under and we also have to keep in a factual antics of the situation this is a law enforcement agency there is a culture of a code of silence that is subjected him to retaliation from the minute even even if we assume that the written memo that he wrote to the district director was cryptic in this and it's contents and maybe it may not have been a whistleblower he people started harassing him from they were actually have a question about that  clearer if that's the essence of a whistleblower than complaint is that if you see you're saying that the fact that he put himself out and that some sort of reprisal of that was harassment by his fellow officers is that the nature of the whistle blowing reprisal i mean is that can do you think that that can constitute sort of agency action in reprisal for disclosure and what were your knowledge of the supervisors  head of the agency's took this action against him and firing him because he did the disclosure you're claiming this fellow officers wouldn't play me management took the action your honor because during the course and again putting the timeline into perspective the event occurred in two thousand and one he testified approximately in two thousand and three immediately after his testimony he was served had we been able to have that hearing in the show that there was management retaliation again we would show that he got two minor disciplinary matters that were critical part fraud and another minor violation where he was so objected to a fifteen day suspension under the the m s b b those are not a testified then as a result of his testimony at the criminal case someone and we've been it would have concluded that it was an officer of the inspector general so this gentleman admitted that his testimony against these three officers they didn't two thousand and one he had not followed allegedly that what the i didn't policy in place at the time which is initiated an investigation which he had already admitted to so therefore based on that testimony in court at the criminal proceeding they truly based on the inspectors to say this is your third strike you're out and that's why they put them in these proceedings to dominate them time is running down do you want  against his fellow officers let's assume that that's true ok is the government's position that that is not protected by the whistleblower protection act with those assumptions there is there is a possibility that it still may not be protected depending on the subject of the disclosure if we're looking at what he just poses and women will conduct if he testifies in the criminal trial against his fellow officers that they violated the law and he's fired because he gave that testimony is the government's position that that is not protected if it did not reveal something that was already known and hidden then possibly this court's decisions it was already know why was the government calling him to testify well just because something is already known doesn't mean that that evidence is and admissible at the criminal trial the government needed to put on witnesses to present so they can begin trying for testifying i trial well i because that's not our case i don't want to give an official position maybe that is our case we don't know but that's a hypothetical what is the bill you saying he can be fired for testifying or are you saying officers he got up and he testified he shouldn't have done that we're going to fire him for doing that are you suggesting that that's not protected by the whistleblower protection act that seems to me to be a very extreme position well and that the government says we're taking this action and they say you're writing because the basis for firing this person is because he testifies i assume that that would say all under normal you know a must be   shifts to the government to show by clear and convincing evidence that it would have taken the same disciplinary action even in the absence of the protected whistle blowing activity now of course in this case we never advanced to that stage analysis because here the administrative judge found and the board affirms addressing the memorandum which was the only issue raised to them that it was not a protected disclosure at all so the allegation did not fulfill the crim don't have a transcript of the pre hearing conference in the record so i is there a transcript no not to my knowledge is a recording or not of that pre hearing transcript now counsel  there's no record happened there is accurate because it not definitively because again we don't have that i have not been able to you know check review what happened in that however in his argument just now mr rodriguez counsel explained reference in response to questions about that pre hearing conference also referenced conversation with the administrative judge at the hearing we do have that in the record and although it is not in the joint  pendants i or rather either of the parties and append to six but at page five of the hearing transcript the administrative judge gave counsel an opportunity to present his objection to the w p a willing on the record that this was the an entire proffer if i may read it just for the record during pretrial proceedings the court disqualified our affirmative defense of whistleblowing activity we would just like to state for the record that it is our position that we provided nothing acts and identified a proper party to whom a violation of law was informed two was notified of an abuse of authority by a fellow another coworker and we believe that because of those facts that were to kill a that that qualified its whistleblower violation isn't explicitly say that he thinks he was fired in retaliation for his criminal testimony i mean he had plenty of opportunities to raise this clearly and put it in the record very clearly  will work correct under the bosley yes that's correct but you do have to under under white you cannot challenge on appeal which you failed challenge before the court and we simply do not have in exe evidence in the record here that this was clearly challenge before the board we have beginning with the initial appeal only to date the memorandum listed as the date of disclosure in february of two thousand and seven mr rodriguez submitted a summarized in its opinion the proceedings below on this particular issue this is at page three of our appendix and again said that the a j advised appellant as to the elements of proof about the that's right and indeed at the time that he testified at the criminal trial he explained that he wrote the memorandum in the way that he did because he did not want to use his words rat on or snitch reason that the board correctly found that this memorandum was not a protected disclosure in the court should firm that holding it in addition even if this court were to find that for some reason the criminal testimony were not waived mr rodriguez testified within the normal course of his duties and if he was in both his position that he helped the day of the march twenty fifth two thousand and one when all these events took place and in his subsequent position after he received a promotion he was sworn law enforcement officer arrest authority carried a gun and could be called into courts testify about things that he observed on the job and that's precisely the kind of testimony that he gave here and but i think it's of stretch to say that that's within the normal duties exception let me just say i mean be useful if  counsel get together give us see if there's a transcript so we know what happened or that a transcript could be made or are there some sort of recording or some sort of recollection that you could agree on as to what happened at the preparing we will no doubt i'd certainly be happy to answer any other questions related to our whistleblower arguments they do want to know before leaving the lectern this morning that mr rodriguez did not respond i had on his reply brief or in his argument here this morning tried demonstration that the three charges brought against him were supported by substantial evidence that there was an excess and that the penalty was reasonable so that the court attempts to do a summary of what the preterit conferences were and i believe i don't remember they were submitted this part of the government's a submission of the official transcript the the the judge also holds pre hearing conferences individually at our table with each party to discuss what their positions are and and to and she can indicate what is going to be a ruling so can i ask about that though in your brief in the great benefit the morning talk about this on page said she knew about the testimony and had read the transcripts yet during our is that an answer to the question i mean because if the judge says i know about the testimony i know what happened in court i know about all the transcripts right is that responsive to whether or not she's going to allow you to do was sir it was a whistleblower well and i get that well she knew about the transcript because we lobbied to get the transcript of that as opposed to telling you she knows about the transcript and she knows about the test but she said i don't want to hear about how that his testimony is untrue that three disciplinary actions that he that he had the two minor ones and then the the one that placed them in the termination proceedings and  basically under our position is that in a substantial compliance type of situation we should be able to pay and then by having testimony of fellow coworkers and so forth she limited every witness that we might a fellow coworkers about about how they were aware how the word was within the organization that mr gregory gets was targeted determination there were three witnesses that we submitted which were as it were to the evidence in this case she totally disregards m resigned under some questionable circumstances not related to this case which was the lead supervisor that was on duty that day which she totally ignores all the testimony of everybody else and it is our position that yes but th different things on the one hand her saying we presented testimony and she just ignore it you know but she didn't allow us to ask questions regarding the atmosphere regarding the whistleblower because she said there was no whistleblower protection under any circumstances should an alarm would ask questions when that be reflected in the transcript like that you tried to ask a question and she said no or the government objected to the i don't have the exact page but there is a there's a dialogue between the judge with regard to the proficiency of the service and whether it is his disclosure would have been protected i think there is a public policy behind the whistleblower had to say