case number nineteen dash one thousand and forty one ms mcclelland for the petitioners ms kidd miller for the respond result in this case was a lower to often not perfect employee miss market it was not a perfect employee but the question before this court is not did ms market and commit misconduct the question before this court the question required and the plain language of the whistleblower protection act is with the agency have taken the same action against ms market had she not been a whistleblower and on that question the answer is no you can see is used the defense department inspector general proved independent causation prestigious removal action and for these reasons we asked that the agents decision be reversed in corrective action ordered under the whistleblower protection act this because on your st point you say that the minister judge aired because he put the burden on mr maher kato but he described the burden accurately right you describe the burden as the burden on the agency to show the clear and convincing evidence that supported the agency's action and and he did require that the agency show that it would have taken the same action and what you focus on in your brief is the part of the administrative judge's opinion where he discusses a subsidiary factor in the question about whether it is he would have taken the same act and you argue that the administer judge erred by looking to him as more cato for evidence of motive but the statute speaks only in terms of whether the agency would have taken the same action and on that the minister judge was clear that the burden was and always was on the agency so how is it error that he was looking to miss mark a though for any further evidence that would persuade him and while i agree with your honor that he was looking for evidence he ignored substantial evidence of retaliatory but i think the legislative history is instructive here because any any requiring any additional evidence from his market after she had overrule case law that had required whistleblowers to demonstrate retaliatory motives congress thought it was unrealistic to have was of lawyers have to come forward with that proof so yeah but how can just one understand how theory works because and correct me if i'm wrong it seems like what you're saying is that once a whistleblower has prime a facial evidence that she is a whistleblower the  what is at the top the time and the timing pardon knowledge timing technology timing right on part of the agency that she sets her and what what does it look like in your view for the agency to disprove motive cuz one way of understanding the car factors is that when the agency says look we treat other i think that's not necessarily and the entirety of the evidence that could be offered to disprove motive no but in this case it might be couldn't it in a case based sufficient as disproof of motive now the words karr is given three factors not every one of which has to be present at every one of which has to be shown by the employer proved or disproved by the employer to clear and convincing evidence but if the bottom line which is the would have taken the same ac evidence isn't that under the statute and under carr anough if that were true that would be enough but that's very untrue in this case because there was ample evidence of retaliatory motive so for him to place the burden on mercator to produce this evidence and not analyze the evidence that existed amplifies how he wrongly shifted the burden because the statute doesn't say that she has to produce any evidence of her telling her what if the agency has to produce evidence i think that there are is evidence of a not originally from motive that could have been produced that was not but i think significantly in this case there was ample evidence of a motive to retaliate on the behalf of officials involved in accusing her of misconduct and you're talking about more or less sort of a cast pothecary where even if the people who made the ultimate determination and were not very tied up in what marketo describes as the as the retaliatory course and as they were just putting a cherry on top of a whole series of events that was fraught with retaliation in her view and that that's what should have been looked into more in your view or are accounted for more in the in the ages decision well i think it's far more direct than that because there's a longstanding board precedent that when i investigation is closely linked to a personnel action the board should look to the beginning of the investigation and the deputy inspector general testified that without the defense department inspector general investigation there would have been no removal the deciding official in this case wasn't even at the agency at the time of the events in question the proposing official wasn't her supervisor at the time of the events in question they didn't witness any of the events in question they relied entirely on this investigation so i'm not entirely sure i follow that when someone has a prime a fish a case of retaliation based on whistle blowing the agency is disabled from doing an investigation no the agency is into infractions and then they thought ok well we're not really going to be seen as neutral here because she has claimed whistle blow up the retaliation for whistle blowing so instead of doing it in house we have to send it to defense and if if the alternative is not no investigation but the alternative is an in house investigation it's hard to s how the defense oh i j investigation is itself that we would properly view that as retaliate tory because there's not evidence that they would have launched this investigation into her her whistleblower the link between whistle blowing and personnel actions is exactly what the whistle blower protection act was trying to prevent and the post hoc justification that this was launched based on infractions is not supported by the record because the reason in the letter requesting the investigation the reason in the record of investigation is that as she so identified as it was a no no no i mean if you look at the letter requests an investigation is where someone who has disclosed to a target a bunch of information about the investigation here's someone who when confronted about a recording has lied to the as a matter of fact that  to her supervisors and those are featured in the referral letter so put aside let's say the letter said nothing about the whistle blowing different case yes if the agency could show that it would have launched the investigation without the whistleblower which that is not a found that it would have that it would have by clear and convincing evidence given the nature of these infraction know whether referring to her as a as a self described whistleblower changes everything which i understand your theory is that it does but you know the countervailing argument that the government has made is to become ended not criticized for sending it off to the defense so i i think that it would be commendable if the government had actually used if that were the real reason but i think that was a pretext of all these because of the agency's conduct during the investigation and because of the agency's conduct after the investigation the agency has said whistleblowing has nothing to do with that and the agency also sent a letter to the council for inspectors general for integrity and efficiency saying that the entire investigation was based on whistle blowing uprising you know the fact that the agency started this investigation it made accusations against ms market it didn't have to start that way they had a draft letter that characterized the entire investigation as against investigator jack lew they didn't send that letter they chose to accuse  long history a motive to retaliate against her and that motives to retaliate against her is not in the opinion so the finding that they proved by clear and convincing a could reasonably think that when an official in an i g s office discloses sensitive information about a pending investigation to a target and the i g could pretty reasonably think that that is pretty significant infraction perhaps but that's not i don't think that actually what happened here the person whom is marketed to disclose information  was not a target he was a witness and a former employee and the name of the target that the agency has claimed is law enforcement sensitive was not marked on force sensitive and in fact appears  the accusations from mr steele as the basis did they have a misunderstanding i understand your theory that that investigation was caused by something that was improperly motivated and therefore we c poisonous tree and we just have to ignore it but the dia de investigators had no are alleged to have had a bad motive for right and they found that there was serious misconduct and we used that finding and when you run the clock backwards and ask yourself what would have happened at the beginning of this process but for the improper motive could take into account that a neutral party investigated and found that the misconduct was substantial i don't think the fact that the defense department investigation was independent means that it was not pretextual and retaliatory and that's because of the motive behind the referral carries over yes and their evidence and only because the motive behind there for all carries over i think also because of the agency's conduct during the investigation including misrepresenting what the investigation was about and trying to avoid investigation whistleblower retaliation and that's once congress expressed concern that ms market was being retaliated against the agency said well you know we've referred to a letter that  actually told simply that deodato i g was investigating are possible now is simply never the case and i think that that's evidence that the post hoc justification that we see for the investigation are different from the real motive which is right there in the letter which is that as yourself identified as whistleblower and so why would her whistleblowing be necessary in referring her for an outside investigation if  why state is asking p l t to do its investigations right and i don't think the plain language of the whistleblower protection act allows for that because the question is will they have to see action proving the charges and nexus in the is not enough they have to show that they would have acted in the same way but i think the question then is is the same way doing an investigation or doing an investigation you know farmed out to defense so i do and i guess the question is is there any harm to her that the investigation w defense or id rather than by usa deodhar e g if it's the referral that is that you're characterizing as retaliatory it's just hard to say that any harm flows from that as distinct from saying doing an investigation of these infractions at all and if that's the question then you get back to judge katz a says point which is in light of someone's whistle blowing when there is also evidence of a serious breach of investor have come to enjoy the end his hands are tied and no investigation by anybody is supposed to take place that's that's the difficulty is i think the reason that the referral to the defense inspector general is so significant in this case is because the agency has said that it would not have fired her but for that investigation not just for the results of of an investigation into her wrongdoing right so i guess michael let me try to get a better handle on your position is it your position that in sending it to defense they should have said you know we have some internal potential conflicts of interest and that's why we're sending it to you instead of saying whistle blowing and that would have i think that the agency if they want to discipline is mark ito should have treated her the same as anonymous and lowers it we get that at the high level of generality but if they have somebody who is violating a serious you know investigative confidentiality policy likely where we have reason to believe they would also have investigated that person was without any whistle blowing so and then there's elsewhere you suggest that what they should have done is included the whistle blowing or pop reprisal issue in the referral to defense oh i j is that your position no that's not ok they should have included that it's that that their conduct in trying to forward this on over there that is a manipulative way of avoiding anybody looking at the retaliation issue they cannot i think you know if the if that if they honk if the charge was looking so bridge value tory or if the conduct in one lane and personnel actions are in the other and if they stay that way then agencies should be able to clear and convincing and demonstrate that and here they did not stay that way they're linked and that's why the agency twenty one dollars the two corrective action cannot be ordered if there is a fine if the agency demonstrated by clear and convincing evidence that it would have taken the same personnel action here removal in the absence of such a closure the administrative judge found that here and that finding is supported by substantial evidence ms mercado piri depends on the idea that not only mr ross the initial supervisor but also the o t o y n g and then later the proposing and deciding officials who she herself described as not even having been involved in the original disclosures or misconduct that all of them were somehow influenced by others who may have had a retaliatory intent this isn't just a cat caught the area it's more like a whole litter of cats where each has a stall on the next one and cheney the administrative judge general portion is extremely important in this case the administrative judge found and i quote no information in the record and no evidence in the record of animus or any retaliatory motive on the part of art but that doesn't deal with what seems like potentially the most arguably potent evidence of retaliation which was by acting  inspector general mike carroll back and two thousand and twelve he was he was angry he raised his voice he was yelling about mercado after she made some audit recommendations and ross testified to that effect i think  scott maybe also testifies about that they were present at that meeting they're the ultimate people acting on this and you know it was it was some time before but my understanding is that theory is that you know this kind of reaction to her whistle blowing was really what put her in the dog house just a mix of metaphors the cats and the dog h and and that it's somewhat you know in him or cottage view it's problematic that he that the a j did not assess the evidence of retaliation confused about that when i st got the case so i think the important point here is that michael carroll had left the agency before the misconduct that was that issue in this in fact it was the later inspector general miss carr was the person who ultimately made the decision to refer to the department of defense so i see for investigation martin i was sorry to interrupt just to sort of  car carol the st wasn't the one who pulled the trigger but he worked closely with trujillo she helped to build the record and react and respond to the to the infraction and so there is a really pretty clear path from retaliation to discharge and the f a a doesn't really address that the ha is more formalistic saying you know we have these two officials there recently arrived we have a determination by defense oh i g and that's not tempted by the retaliation well although the ministry of account at the time but she that the records show that she was at her home working from texas and she was working in the audit division this is all explained in a declaration that ms trujillo submitted to the administrative judge at page three hundred and sixty nine of the record so she was in a she wasn't in the management department anymore which is where mr carroll and miss mark how to work she was in a different department a different geographic location working part time on much lower level projects as the need arose so in that in the context of all of that evidence that the people who ms mercado accused of having motive to retaliate i by and large all left the agency and if you look at page seven hundred and twenty five of the administrative judge's decision he focuses explaining that she didn't even she did not believe that ms scott and mr carroll the deciding fishel were themselves moated motivated to retaliate against her rather she thought they were quote influenced by that senior management who was at that point largely gone from the agency and the administrative judge explicitly found mr carroll credibility on this issue to outweigh the appellant with answers appear to have been speculative  analysis and this analysis on page seventy five dollars showed that he did fully consider the motive evidence and focused appropriately on that deciding official who made the decision that is also the focus of the bit internally inconsistent to the stance that when he was assessing the prima facia case he said there's some circumstantial evidence of retaliation under this what is it time knowledge time knowledge test and then when he comes when he comes to the defense and asks himself whether the agency would have made the same decision then obviously those questions are related he said looking at extent of the misconduct against the extent of the retaliation at that point he says the appellant failed to show the agency's actions were motivated by retaliation seems like those two statements are inconsistent if the nd one were true there would be no prima facia case in the st place how do we a whistleblower but it that but it's not knowledge for its own sake it's knowledge as evidence that the decision at least in part was motivated by bad a i understand that and it would be perfectly it in my view it would be perfectly reasonable on this record for the judge to it's sad there's something there's some evidence there's enough to clear the relatively low bar it's a prima facia case and then i have to assess the defense with the agency have done the same thing and there's substantial evidence of serious misconduct says relatively attenuated and circumstantial and therefore i find by clear and convincing evidence they would have done the same thing but he didn't quite say that he said there was no evidence at the defense state he said there was she failed to prove failed to prove the agency's actions were motivated by retaliation and i just as a quick point of background here the the federal circuit and several other circuits at this point have now adopted the same par factors that this court described those are factors in the two thousand and five decision the administrative judge and this court injury analyze whether the agency would have taken the same action so the the administrative judge very clearly found before analyzing the individual factors that the agency showed by clear and convincing evidence it would have removed during the absence of disclosure and made that same finding again at the end of his now now while he doesn't refer to the of the appellant failing to show retaliatory motive i think that that's more language reacting to the reality of how evidence of retaliatory motive typically comes into the record the agency's trying to prove a negative the understand and you're sort of answering the burden shifting point i'm not sure i guess i'm just not sure which internally consistent but so so the burden sifting point you know your brief says that the a j is reference to market as failure to prove retaliatory motives quote stray language close quote and that was but you know if you look at the section on retaliatory motive in the in the opinion the heading in bold says the appellant has failed to show retaliatory motive and the st sentence says the appellant has failed to show the agency's actions were motivated by retaliation so it's it is hard to characterize as stray a language and some of what i hear you say today is a little bit different from brushing off a stray language and i guess i'd like to hear more about your view is it that i mean to some extent it seems like the other car factors are speaking directly to the retaliatory mode of question as well and if you see it that way than in showing what it would have done anyway and in the showing how it treated other similarly situated people the agency is showing a lack of or tallit tory motive is theory well i do think it's true that there can be overlap between the car factors particularly wanted to for the strength of the agency's action this was very serious misconduct i specially  lying under oath for example to another investigator from another office of inspector general the the administrative judge and language here i have to be read in context of course and in  act i think more of a reaction to the strength of the agency's evidence that it took action for proper motives and also a reaction to the absence of evidence in the record that there was a retaliatory motive particularly on the part of deciding in fact official mr carroll it's very interesting to note that in whitmore which is one of the leading federal circuit cases on the car factor and it's very clear that the burden is clear and convincing evidence for the agency the federal circuit even have a line at page one thousand three hundred and seventy two of its opinion where it says federal employees are entitled to rely on circumstantial evidence to prove a motive to retaliate so there that the federal circuit was quite clear the burden is on the agency but we see even the federal circuit using the same kind of language that the administrative judge uses here and i think it's just a reflection of the reality that the agency can put on its evidence for proper motive which the administrative judge analyzes here but is typically circumstance events that comes from the appellant that if a motive an improper motive really is what  motivated the agency it's typically and the reality coming from the appellant and i think the so i mean i actually i have to say sorry but you're somewhat confused me let me just ask you one simple question is it your position that the burden is on the agency to show each of the car factors by clear and convincing evidence no the burden is on the agency to show by clear and convincing evidence that it would have removed ms mercado even in the absence of her whistleblower disclosures the car factors are a tool to help analyze that but according to federal circuit of example the agency is not even required to offer evidence as to each of the three part factors so it's not just the agency have to prove every car factor by clear and convincing evidence the touchstone always that question comes from the statu agency doesn't rebut that evidence directly at all but powerfully shows that it has other grounds that are strong for firing the person it might still succeed in establishing that it would have taken action anyway yet you're wrong and so in this case if if if if mark otto had had instead of the inference arising out of timing and knowledge had had direct evidence of someone saying you know we can't have her here she's you know the whistle blowing is the strapping us from our mission and the agency left that on the table but showed that she seriously violated rules and that her discharge was similar to the charges of other people who had serious about rules that that could succeed in your view under the statute and under car i think it would depend on who was giving that testimony so if hypothetically the deciding official here mr carroll had made a statement that he felt very influenced and pressured to retaliate in his decision which is the precise opposite of what he testified but if that had been the testimony then i think that that would have been a much stronger case for ms mercado we would have expected to see the administrative judge in gauging with and analyzing that evidence in the opinion from the eaton c described a culture of retaliation described a history of retaliation against ms mark a doe described that he was pressured to change opinions that he had written against disciplining ms market in the past and so  and that is likewise with mr ross who is the supervisor the agent writes it as though mr ross you know initiated this action when in fact he testified that he was pressured by mr hewlett that he felt he was she was unduly pressuring him felt she had a retaliatory motive and that he himself was retaliated against for not going along with that evidence appears nowhere in the ages decisions are defined a matter clearly and convincingly proven without waiting that evidence that's a finding not supported by the record wasn't ross also though that that one of the recipients of rests marchetto spall statements and he he does support he says i didn't i don't remember saying that the defense i g that he would believe this market over history but i think that what's significant then is that the question is no longer can the agency prove that it could have removed ms mark a time for this misconduct that's not enough that it would have that it would have that's but that's the standard and and proving that it would have i think in this case because it's based on this defense inspector general investigation includes proving that it would have undertaken this investigation and none of that why the investigation was undertaken that discussion that day appears in the eighty's and that was so in oral for you do we have to find that in the absence of or do we have to find that the a j erred in failing to account for a reality supportive in the record that in the absence of a retaliatory motive even in the face of these infractions the agency would not have investigated it no not exactly and certainly not as a bright line rule i think it's a fa dependent question when you have the deputy inspector general saying we would not have fired her if this had not been substantiated by the department of defense inspector general then not by an investigation say that's that i don't your i think he says had there been no substantiated findings out of the defense inspector general investigation not because that's who did it but but if but if you accept that it was it was a matter of course that somebody would have investigated  than the fact that the fact that it may have had caused on her self identification as a whistleblower that it went to defense doesn't it's just it's still like it carries more than it bears more weight than it can to say that that referral was somehow retaliatory because it referenced whistleblowing and therefore what we should compare it to is a no investigation baseline as opposed to an in house investigation baseline or an investigation by them that said mentioned some generic conflict of interest rather than whistleblower well i think it hinges on agency has not shown that it would have taken the defense inspector general without the agency's burden to show that they would have done it yet it was a dearth of evidence that the agencies justifications aren't supported by the written word and so it's not so much that you have to find them to cats as to any more questions right thank you both very much the case of some of it