putting the burden all on my client colonel mcmillan that failure infected every factual finding by the administrative judge when you're not you don't dispute that that there was some requirement to for you to show the motivation so you had to show that that it was motivated by the military that's duties that's correct and isn't isn't it at least at least the contention on the other side is that that's all that is clear there is the initial burden we don't have a the applying to the petitioner in this case doesn't have a heavy burden to show the motivating factor then the burden shifts to the employer the agency good to determine and to prove that's the key they have to prove that they would have taken this decision to deny him his tour extension where is the proof that for example everybody who sends a test the email to their boss gets their tour did not notice no such proof where's the proof that that military is that the folks who are on military duty are being treated you know the same as the nonmilitary indeed the proof was on our side we showed that mr walsh who bite everyone submission failed to follow chain of command he was the one that walked down to patrick's tent camps office and got the permission to use this device this report he was the one who was the intelligence officer my client didn't even know what the f s r was or its import and they're already on the way down to mr military activity and there was an assignment to analyze that deviates from from in libya but there was no obligation to use the airport for that purpose was there so and so my client has a colleague who's in the office who was in bolivia when they got kicked out and so he goes down the hall using an open door policy and goes down and says hey mike is there almost by the hand and says and then gets approval from the third level supervisor there's no discussion of of this chain of command or anything like that and indeed this is what's this report this is walsh's bailey what he s it teligent officer he knows what is compartmentalize it and so forth and so he's the one who needs to follow the chain of command and he doesn't get discipline he gets his tour renewed and he's not a military all of this spirals out of control when my client goes out on military service this is under spirited who goes out on military service and has a e mail exchange with his boss trying to sort of defend himself now i think we can i think we can all agree that the the mode of communication of e mail is not ideal and it doesn't allow for tone it doesn't allow for a lot of things but remember my client is serving in the military while stationed in lima peru he's a weekend warrior but he can't go up to miami every weekend to go do his military service he has to do it in large chunks as he did here so he he's off on military duty and sure enough he got the permission from the third level supervisor and he goes off to do his military service the army so impressed with his work they wanted to be more and then  what's what's critical here is that now mr spent camp who by the way factually he and walsh were formerly in bolivia and those guys now realize that this military assignment is becoming more and they want to shut it down they have a change of heart and they bring up this idea of what you have and followed your chain of command well my client comes back he he  appropriately apologetic he follows orders there's no no suggests they didn't follow orders and then he's almost sudden discipline let's clarify this this chain of command ok then what if we agree with you that that your initial burden was met that there was an appropriate shift to the government to prove and we can debate what the standard is sheehan did broke no rule or regulation at all and you also have and this is key you have the i believe it's called the d e a for sixty four for sixty this is  the this is the four that sets out ideally age agents performance for the prior period that foreman says that he significantly exceeds expectations and there is no way for the government to now come in and well you didn't as they did in the hearing over you didn't have certain metrics you didn't have confidential informants none of that is is at all in the official form of his performance and so if the government has to prove something they've got a they've got to tilt the scales but there's nothing on their side where's the evidence of we treat we have people applying for tours all over the country over the world in fact where's the evidence that  when when somebody is not outstanding they're not rated outstanding well then we we don't extend their tour where's the evidence that says that we had five people transferring into lima who were spanish speakers and we needed to get rid of a couple spanish speakers there's no evidence of any of that and they simply don't have it so with to answer you what about that the evidence of of the e mails and they say that the tone i inappropriate every day i understand it's not the military but it but it's still large force marketisation i'm with i understand that and but what i think is that that decision that that first of all we have a line drawing problem what what is a what is an inappropriate e mail enough to satisfy the government's burden here but in a in addition i think the other problem that that we have is there isn't there isn't anything more there isn't anything more and that is clearly his military service he's he's in florida with the army when he sends the e mail and and when the n s p be you know seizes on the fact that he he wrote you know his sign line says you know dea agent well ok but my point is that you are reservists are into capacities all the time they're working for their civilian employer and they're working for their they're working for the military and here it's most definitely about the the stuff of the of the of the test the e mail is about his military service his military assignment the fact that he's gotten permission to use this resource now being told not to and if i may just to defend my client's reaction you know that the military they teach up well i think that might have been a poor choice of words if if my client had to do it over again i think he would agree but the point is he was he was making his point one time that he was shut down and he followed orders there's no thinking is it right to interpret you sarah so that we're here dealing with forms of personnel decisions that are not  know adverse actions under the seventy five twelve regime so in the ordinary course an agency has doesn't have to worry too much about how the leave decisions are being made putting aside pretty personal actions and with the lower and stuff like that and what seems to be the concern here is that where and employee who's also a reservist is performing work while on reserve that they're suddenly a kind of a license to mean gauge in let's just call it misbehavior use inappropriate language go outside the chain of command that suddenly now he's actually pointing agency has to walk on eggshells about question how do you deal with that that worry that i think is overhangs well i think that when the burden analytically when the burden shifts to the agency to prove that it would have taken the decision anyway the adverse decision that other employees who do similar things outside of the seventy five twelve region the that's a that's a burden and presumably a significant disincentive to making and otherwise ok decision to you know ok you're not coming you're not saying in which you wouldn't be able to challenge it because it's the proof difficultly is just too darn hard you know i don't think that this is any different than what every other employer constantly does with its employees when employees engage in protected activity they go on leave under the family medical leave act when they go on with it when they gauge a protected activity on behalf of protected classes or on the behalf of themselves this is the kind of recordkeeping that employers would do anyway and so and so if you're if if your honour's concern is that employers of military folks would would be on eggshells for you know a bombs being lobbed at them while the person is away on military service i think that there is a an element that all wraps up in the agency being able to meet its burden of proof remember this is a burden that they account of their service so once the burden has shifted analytically then this is where the employer would have to have to prove isn't that difficult and th normally you wouldn't have had the young age and analyzing d n a activity as part of their military assign i agree so how do we deal with the fact that there is this this merging of the two i think of an example like i think you try to think of hypotheticals but you know a uniform service member who's in the logistics business and works for fed ex and then and then goes off to their job at the army or the air force let us say and they say hey how do you guys do it at centex that you pack all the planes with all that stuff and he says all we do this this and the said at fedex and you know you are we the reason why we have a reservist military is we want them to bring to the military the best practices and and the and all the stuff that they get in there in their civilian employment and bring it into the the military context here they have to  military intelligence officer and they had to come up with an with an assignment for him to do and they they gave him this assignment you can't refuse his military orders he can't so he has to comply with his military orders and impossible to establish that that the motivation since personal motivations are rarely expressed but the court set out things that you could do this circumstantially establish the motivation and three of the four it understood that the board had not segregated the and it says although the in this p p did not separate the discrimination determination to two discrete parts the first of which for which the claimant bears the burden of proof and the second which the distance from where the camp didn't even know what the chain of command was he thought walsh was in this direction of command so how can the chain of command have been so important when when the head guy doesn't even know who's who's in his own chain of command well i think it's important for i direction he thought walsh reported directly to him right when walsh actually did have an intermediary one of the things that mr soong can did also testified to was the fact that he assumed by that by virtue of the fact that mr mcmillan was coming to him with this request for information that it's been fully vetted there's i didn't even remember mckay mcmillan coming to it remember to wash him he said he should even remember mcmillan being in the room that is i think that is inconsistent with with my my memory of the record and and there is now and there was testimony from everyone including walsh that up until that point in time there been an open door policy small well that's absolutely true however there was consistent testimony from mr walsh and others including this minute who didn't have a dog in the fight that indeed when you when you were trying to use it was something that's from his minutes  joint appendix seven forty forty one that you wouldn't just choose to disseminate or tend to disseminate information outside of the agency before you read it through your chain of command that certainly the distinction was at work here and it's also borne out by the immediate supervisor in addition when the issue of the of mr mcmillan's participation in the telecom where he presents i'm going to representing d n a this is in the command only becomes important once they get nervous about the fact that they've authorized him to use it your honor i believe respectfully that's incorrect mr walsh actually explained that there's a difference between someone coming to him for internal da work a external work and the given mr we've given them external millan's workers for external purposes not for military purposes just that it was for external purposes they were required to fully vet it through the chain of command but last i asked him about that in washington  at it back and forth stamp can't have even been involved in the edits made when you've got that head of the office at it in your report and knowing what you're using the information for i mean how is it that you're supposed to think you've got to go board actually made a specific finding that the managers management that the that the board credited mr stan camps testimony that he believed that initially question whether mr mcmillan went through his chain of command because he soon that he had because since the academy individuals in these kinds of positions had been instructed the chain of command presents safety issues  issues with consistency of message and and the like so the board actually indicated that he found mr stan can't the board france in camps explanation which is of course based also on the credibility determination which is virtually under your own reviewable according to time the board stated i found stan can't really l g say that i found stan camps explanation of why he did not immediately question whether mcmillan had gone through his chain of command reasonable disagree with you on whether or not his initial showing was sufficient to shift the burden would we have to remain for the board to assess whether or not the government met you actually find that the government established that it would have taken the same action your career could be anough evidence for to find that another evidence for it not to find but the question i conceive of a scenario in which the board could back away from credibility terminations associated with our of alga stepha can stand can all testifying consistently that the decision but the credibility determination was oddly w premised only on they seemed to be telling the truth there were you know there's lots of factors when you instructed jury as to how you make credibility determination one of them has to be is that supported by other evidence of record or contradicted by other evidence of record are the in consistencies with respect to how they treated the same circumstances you go through a whole series of analyses to make a credibility determination this was simply such a credibility determination that that seemed almost too cute in other words i call th credibility because i looked at them and they seemed to be saying nice things your honor that that is not right or they are would disagree with that specifically because of the documentary some of the documentary evidence that we've discussed this morning the immediate reaction can being with who are confronted with this request to represent the military phone call saying no no no you need to did you first discuss this with your change did you run this through your chain of command and the answer is no you did not that i consistent with yes what were the best citations not just sent camp and others from credible but that they were credible in testifying or that they did testify we would have taken this action even if in fact you know a little bit impolite or testy i think was the word used before but not on behalf of these military the i think that the one of the things that that all attested to stephanie indicates that the e mails in which  is not that they cared about the chain of command but the specific proposition we would have denied the tour regardless that goes it that that goes primarily to to a discussion  well the problem is that there is an inextricable linkage between the rudeness that they all comment on which is apparent from the face of the e mail a determination that this you can judge the level of rudeness a lot of different ways renewed mr mcmillan's tour quest because mr mcmillan's investigations quote did not appear to be investigations that merited a g s thirteen mr stink up goes on i didn't think he messed with the team notion that i was trying to cultivate here in lima he was a lone wolf like to one hundred twenty people in jail he goes on to list several things and they were disrespectful they're not following the chain of command or they forgot standing in that sense but they didn't go along with management so i think those are the factors so i don't think there's anything in the da policy that says you have to have a certain investigations of marriage g s thirteen that those are also i realize that there's a lot of testimony there were three individuals involved in this decision to deny the tour past working together so certainly there were there was the disrespect there the failure to follow chain of command and then there was a discussion to do for track to question of performance matrix but in terms of there not being anything in the writing as far as performance metrics are concerned one of the things that mr r b i to testify to speakers speaking to mr mcmillan specific performance but him his performance review of one right before that they went into great detail about all the things you get complex and what a good agent he was why  for the tour quest obviously regretting is not all that matters that's the that's the testimony but also there is the record evidence of the difficulties you started out with management when you but the point here is that you have an employee that refused to re accept the decisions of management regarding the use of the agency's own material and bats or the argument on the other side is that he did ultimately say he questioned it once and they said no and he said ok he did not keep coming back he didn't do it without authorization all he did was was after being taken all the way down the road with that it's being done by standing up himself and changes being done to make to his report he's told the last minute he can't use this report and he says this doesn't make sense to me you say you can't do it so he doesn't do it how is that not following orders then the issue was that he did not  she was not initially seeking to go through the proper channels to release information outside the da and the a in an environment where the testimony universally established that that was important for safety and for consistency of message  and as far as he didn't keep coming well to him certainly made the time that he'd certainly made his one response count he went on for several pages criticizing implicitly criticizing his third level supervisors  intelligence officer and goes on for pages that the one time where you saying he questioned authority it certainly was quite a lie it was certainly was a zinger of the type that one would not ordinarily expect to see addressed disappears in that context and in addition it's part and parcel of a larger pattern where he does internally question from mr singh counts decision with walsh and does criticize it  is there is enough here for the for the court to to decide that the the government could not carry its burden why because if the government were to now come up with something else this would be what the supreme court has said in re other cases dissembling it's a it's a false it's a false reason now it's different than than what was given before i think it around the credibility in terms of the credibility determinations as i as i argued before are infected with the all of the failure to shift the burden analytically the the all everything that we're talking about the email at issue the defending after the edits that your honor pointed out all of that was you know his hi assignment is now to put and he's got to start all over again he's giving it one last ditch effort and this is all while he's in florida via e mail defending what was his  role in doing this and why it would be a good idea it's it's actually i think what we want our d a agents to do not to of course insult anyone but just like to stand up for themselves and and to say what they where there's an opportunity that's what it was it was it was mr stan camp you're missing a good opportunity i'm well positioned here to help with this mr stan kemp didn't want to take him up on that mr stan kept as your honor as pointed out didn't know didn't even remember all of this that happened and why because as your honor pointed out this is a small office he took walsh took him by the hand and and please if if if for no other reason remember this  sense of what was at issue here but but the fact is that the military intelligence officer walsh he's the one whose job it is is to know whether it's being disseminated or or what when when mcmillan goes down the hall and says to walsh i'd like to know about what kind of materials i should use for this army assignment buddy colleague friend and he says oh well there's this f s  is the one who has to know that would be giving it outside the e a was just one of us to know that rule walsh is the one to know if there's a chain of command rule to be and to be involved here walsh is the one to observe it and it is the height of hypocrisy i think for the agency to come and say that it was a burden on macmillan and he should have known this from the get go and that's not something yes he knows about chain of command when we're talking about people with guns drawn but