right we have court cases before the court this morning the first sorry versus the department of homeland security is case number one seven hundred sixty four i apologize evidence do you dispute that the performance review itself automatically triggered the performance plan we do and we don't think that that's what the administrative judge found and we don't think that that's what the record support the record certainly supports that the major abuse deficient in two categories in the major review and the handbook states that if you're deficient in even one category you could be subject to a performance plan but the administrative judge found in his performance plan even though he was he wasn't just the person he was at a one which is completely unacceptable that's right and so you would expect that they would take that action but the evidence and the administrative judges finding actually indicates that that would have come later  time perhaps again end of your evaluation i don't dispute that under the what it says in the t s a handbook that you would have expected this to happen but that's kind of the problem in this case it actually gets to the second legal air created by the administrative judge and the board that the questioning under the the witness whistleblower protection act is not whether the agency could take certain action against an employee but whether in fact they were going to take action against the employee and that  but in fact the evidence doesn't support that that's what the t s a was going to do and if you look at the subject matter that was that the subject of the second protective disclosure you get a sense that this is a security station where there are certain things going on t v what you have protected disclosure was not in a subpoena by omission the administrative judge found out but it appears there's an appearance that there isn't kind of a disciplinary enforcement going on it this security station there's a protected whistleblower disclosure it that was found by the board below and it has not been disputed by the government they having contested that it doesn't really say much of anything that doesn't well you know i think it raises questions about what's happening at this particular security station and to the extent it starts to become a squeaky wheel where somebody is going to start looking at are they really taking employees properly are employees doing what they're supposed to be doing are they talking on the phone or or doing other things and that way maybe it's like kind of your extreme whistle blowing case where you have you know that a really kind of extreme violation but you still have a situation where he's now drawing attention to how these supervised phasers are running this particular security station and in that way it is whistle blowing an act of whistle blowing it was found to be wanted by the board and at that point and the subscription comes in a second days after that act so it does actually look like that was an act of retaliation but even some of the even in the in the face some very clear whistle blowing they the agency can still bear its burden of establishing that that this individual would have been suspended or discharge anyway right that's absolutely right and i think that that really goes back to the second legal error made by the the administrative judge an abort below the administrative judge specifically found that the charges were all supported and the  was a reasonably measured response to the charge the problem is what we don't have a new record is he had these three s and p violations in march and so we said then didn't because of them what you really have is he had some s and p violations of marge then you have this mid year review particular performance review evaluation what it says the fact that you've got a three in this area i think is properly applying us okies and makes no mention of this particular violation that is so extreme they're going to suspend him for five days it doesn't make any evidence was which ignored just not considered at all what which is what which similar about that in this case so we would not go so far as to say that the mid year review evaluation was ignored because of course he briefly mentions it in the context of the ip but the fact that you have the content of the media review of you evaluation contradicting the conclusion he's reaching we would say that is you know contradictory countervailing first violation of march the conclusion was long going to do some kind of discipline i'm not going to go so far as to suspend them and but after the second violation they started going back and looking and realizing it was a previously thought about her performance evaluation but it is silent as to any future disciplinary activity so we don't really know what's happening there there's a fact finding that occurs it's done by mr busy areas it's completed on april seventh it is very hard to make sense of what the sense that if they had a soapy violations and then a fact finding and from that we're going to suspend this man but then you give him in achieves expectations in his mid year review evaluation for that i don't really find anything odd about that  e your view process would have probably started weeks if not months earlier may already have culminated even before mr desires process was in place or finished so these aren't necessarily the same tracks why why are you saying it doesn't make sense that it made your evaluation which was being probably done for the entire staff i'm sure it was required at least by  regulations if not statutes and it's probably done on a kind of a systematic basis would have necessarily encompass an investigation targeted at certain specific misconduct i think i think what you're saying you're saying is well once they found this out they should have reconsidered and given him a new mid year evaluation but i'm not sure that's how the government works these evaluations are usually done on the certain cycle they're required to be done and sometimes by a certain cycle so it may have been done and signed and put into place and he had to give it to him or discuss with them and this investigation was proceeding on a separate track it doesn't seem to period up to and including march thirty first so everything that happened in march that was allegedly that the cause of his suspension should have been in compas by that review period and he didn't get i want you in for a purpose on his knowledge of he's got a warning to other categories and i can go to one was getting along with coworkers and i thought the other one was knowledge of recipe i believe it's actually factor three in this case for the i p s or for the removal proceeding that may suggest that it doesn't happen that often there is some testimony sort of to that effect immediately be put into a performance review claim it's not what happened here in fact the performance review plan didn't even came to we two months later after they said that there were additional deficien so it's not that they had this performance evaluation and able and then suddenly and we're doing the performance review plan putting on it they actually said well they did it two months later though if you know it's late i think you're reading into timing of government events that are perfectly explained by the way the government operates which is to do these evaluations of performance improvement plan usually requires i don't know what they didn't say t s a does this i soon they have to in certain  an actual written document saying we're deficient in these three areas here's what you need to do to meet your goals and improve your performance mix up a level the fact that it might take two months to complete that document isn't surprising to me at all i mean why does that gaps tell us anything about whether that would tell you tory well for one thing do you prefer protected disclosure comes in through all of it so you have the evaluation image avril and then you have the protective disclosure able thirty or a couple days later now he's being suspended now suddenly they're changing what was in his performance evaluation lowering to ratings in one case based on events that happened back in march and should have been addressed in a performance ashraf testifying to the fact that she began discussing a good plan with h r in late march she testified to that effect that a sixteen fifty seventy five the only documentation we have from her is that she wasn't considering that that she was considering something less than that twenty sixth she will was considering an improvement plan but the but that's not inconsistent with her then testifying that she continued to have discussions about putting him on an improvement plan and miss white that was the point of doing all this in secret was his performance and his conduct was under review he was pulled from the screen duties because he was determined he was a danger to the traveling public to allow him to continue in april he gets a three in terms of security risk gets that in on april fifteenth he's got to assume that they may find something else but what if they found something from january but they have been allowed to discipline him from from there on that we are i don't know about any statute i think there actually are regulations i tab has been reading and it really is just complaining about his duties that he had been assigned and they were not security duties and he was complaining that he was unable to perform and so there wasn't really much motivation to see on the face of  face of the disclosure to forty seven what are we to make of the fact that that after his second disclosure there was a there was a review and it was and it was determined that many people were violating various s l p i don't i don't think that they weren't benign and that i mean some of these activities went to a security risk like ordering pizza and having a delivered right there at the at the gate and that was one of th first two person personnel actions at issue the ip and you and the and the six but it's still relevant because the question is is not just whether there was an action taken in response to a particular disclosure but whether he would have been terminated or suspended otherwise and if other people are allowed to get away with s and p violations without being terminated or suspended or placed on performance for beings then that's indicative of whether or not but for these violations he would have suffered these these additional consequences your honor i don't think that the record support the conclusion that other people were allowed to get away with s a p violations i think  why it's not mentioned no i don't think that's how i would say i would i think the argument is that we have this movie review evaluation it could possibly be the basis of a performance or review plan but there's no evidence suggesting that it actually was the basis and the government's burden and what the board was supposed to find was that in fact it was the basis of the performance review play or there was some other basis but but that's not what the record so so the missing  you assume that the report reviewed all of the evidence the court below however this court had say in with more than any determination by an a j that is based on findings made in the abstract and independent of the evidence which fairly discretion to determine what the opinion should contain and they want the pill that's fair but i do think that it would be contradictory to the court's determination that where you have clear countervailing evidence it needs to be addressed and so in this case but that's not our standard your view is i mean you're from the on the other side is pointed to i mean clearly you want to point out inconsistency is in the holes but there's testimony there's documentary evidence for all of these was performing badly which is why he was suspended he got a poor performance review which was why he got the performance improvement plan and he failed his performance improvement plan which was why he was removed there's testimony documentary evidence for all of that isn't there and isn't that all we need to in fact probably require to affirm based on that i know i've taken over you can answer thank you i don't agree with that and i don't and can explain away the discrepancies in the record that potentially but i think you still have the additional legal error that their findings were not that they would have taken this action but rather they could so i think you still have the secondly blair