there will probably be times when we are speaking over each other if that occurs let's all stop and we're going to try to regroup there will be a break  make a protected disclosure under let chance versus white answering this question requires an independent review of the evidence if you conclude that the administrative judge did err in resolving the single reasonable understanding of what he was reporting to his superiors that is correct mr delgado did not need to show that his belief was the only reasonable view of the events he merely needed to show his belief was one reasonable view of the events based on the information that was available to him and that's consistent with what the court said in delgado one where the  acknowledged that there are many possible explanations for discrepancies between the testimony of different witnesses but nevertheless the court held that mr don't go out delgado's disclosure was sufficient because it made clear m stiction to address the merits of mr steele got his claims but of course under this court's decisions and wilder and key and other decisions that didn't mean that the m s p b was free to ignore the principles set forth in your decision and don't go to one the end unfortunately the administrative judge did that in part for example the court made quite clear and this is consistent with the statute that mr delgado did not need to prove or even claim that mr love no had actually committed perjury he merely needed to disclose any information that he reasonably believed evidence to perjury and never the last the administrative judge concluded delgado did not make a protected disclosure in part because he didn't mouth of the word perjury she even went so far as to say that this precluded her from addressing the merits of del this court in the prior you know your honor there was no material difference in the of events mr delgado testified that he told his superiors in which he stated quote delgado specifically stated that he felt that was no make contradictory or on truthful statements in his testimony it's also corroborated by an e mail that mr sent himself shortly after his meeting with mr delgado documenting the conversation and in that e mail which is also in the appendix he stated that delgado quote felt that lab know with honest in his testimony and it was also corroborated by a declaration that mr roundtree signed also in the appendix in which he stated that delgado disclosed that lab no had been quote less than truthful that is  about his promotion right well i wouldn't i don't want to overplay my hand here i'm i'm not saying that it did resolve on the merits the reasonableness of his belief may have disagreed on a few details agreed on the essence of what he in fact disclosed to them and that's really the decisive issue that's correct yes that's precisely correct and  that's the evidence that i just recounted in response to judge for openers request and that's consistent with my understanding of delgado one judge barrett is that what the court affectively held is that did non frivolous allegations that he had made a protected disclosure and that if those allegations were proven they would add up to a protected disclosure and in fact grounds on which to make that disclosure he is a law he'll spend in law enforcement for over thirty years and he testified that he had a clear view of the robbery and its aftermath he is a trained observer of these things he saw the robber michael parrish approach latinos vehicle he saw a parachute and as lookout james which are fleeing to gather and he saw a lot of no fire two shots at their backs what he didn't see and what he says didn't happen contrary to mr latinos testimony is that parrish and the ringleader of the robbery robert jefferson tried to exchange the money as they were escaping which if they had turned toward a latino in doing so might have justified the shooting but there's more rated by the was corroborated by the lookout himself who james which or who told ocado right after the shooting that he had fled with mr parrish not robert jefferson another fact the a t f ignores so all of this plus the fact that mr lott no needed to justify the shooting easily adds up to one reasonable belief that la belle might have committed perjury and that's alone anough to require a reversal the administrative judge found that this disclosure was a contributing factor to two adverse personnel decisions so if you agree with us that in fact mr did have a reasonable belief based on the information available to him that lab now is testimony evidence to perjury then a reversal is required  protective disclosure and therefore no jurisdiction as a matter of fact that may or may not be right with the administrative judge went on to make those findings you mentioned about contributing to two adverse personnel decisions and but as far as i can tell did not specifically address the government's affirmative  defense in essence we would have done the same thing anyway when those decisions continue exploring the differential treatment of the clause a the two causation issue given the finding that there was no protected disclosure finding that you're pointing to about contributing to the two adverse personnel decisions in two thousand and fourteen correct and she did not make any explicit findings about the government's affirmative defense we would have done the same thing anyway correct so my question is can you account for the different treatment of the two clauses ation merits and then on page fifteen she says and direct contravention of delgado one precluded from addressing the merits and inch fact she cites a case called schmidt lange vs department of army in which the federal circuit said that the m s p in that case didn't have jurisdiction i don't think she's right about that i think what she was attempting to say in an in our full way is that mr delgado loses on the merits but that's incorrect for the reasons i've explained i suppose she thought because of that she didn't need to reach the clear and convincing evidence issue but that issue in the government's closing submission i don't have the specific record cite for that but it does discuss there and they put on a fair bit of the evidence on that question but we don't think you know at the end of the day that they met their burden clear convincing evidence is a very difficult burden to meet as a federal circuit has explained discussing the carcase and we think that you know if you look at the evidence it would ultimately be futile to remand the case for a discussion of that issue because we think the result is for gain for reasons i can go into but what we're st and foremost seeking consistent with wilder and seen is the court simply directing relief testimony in alleged perjury ok the administrative judge appears to have thought that because the nov th teen e mail was the only thing that mr delgado attached to his complaint that e mail itself was the only relevant disclosure for the twenty a keen case but the court held in delgado won that when you're looking at a pro se complaint you have to generously can strew it any claims that are fairly implicit in the complaint and it's quite clear that the law of no testimony is mentioned in the e mail and in fact the the administrative judge said short appendix twenty eight and eighteen case and involved quote the same disclosure as the two thousand and fourteen case and as the a t f notes she repeated her analysis of the lobby no disclosure and specifically adopted her find so she was in some sense speaking out of both sides of her mouth on the one hand she was saying mr delgado was limited to that email but on the other hand she was clearly discussing the original was no disclosure which was repeated  delgado made the original disclosure in february th teen and then the evidence shows that he repeated the fact that he had made that disclosure to george lauder who was the receiving manager on the rockford position and repeated it to ray for gozo who was the receiving manager on the chicago supervisor position so they knew about the law no disclosure within a year of mr delgado being non selected for those during appellants argument about that i'd like to try the i can't sort of clarify what i think the procedural backdrop is here and how it solves the question of the differ from the evidence that was before this court previously well the evidence before the a j included the testimony from the special agent in charge th was aware of at the time he made the the disclosure which is significant to the objective disinterested observer analysis what he was aware of at the time was  the problems in the past the appellant's approach is it's blocking off the procedural steps here and one of them is now we haven't aged findings on the evidence or the merits here and the question now is you know the standard of review that's put out dictated by congress on that finding i think that's also what appellant is trying to do with their argument about you know a relief to punish a recalcitrant agency how they put it in parade but how is punishing the m s p by punishing a t f by taking away their procedural right to present a finding on their defense if it doesn't i don't see how that can be appropriate convincing evidence or affirmative defense and how you presented that to her judge and asked her to make findings on that issue well i've been here i i don't have to i'm not that that situated individuals and you know that's also available in other parts of the record i know that these assets of the record are before court but again that's part of us well some of this some of the specifics i don't think is big that been specifically addressed in the briefs and because the substantial evidence question once it reached by the administrative judge but other things that supported the disconnect between and it certainly looks like that judge roemer i honestly think that was was probably a linguistic influence in the in her opinion because if as i think judge hamilton pointed out when he was going through the opinion  if you look at what she did it's pretty clear that she conducted the merits hearing you know as the regulations call for taking evidence on points and then she proceeded through the burden shifting analysis of reasonable belief that there isn't surgery he did then go through all of the adverse employment decisions but she didn't do that and then they st learn why was that you think  i don't know exactly why i understand what you're doing i just fear i don't know exactly why the nd decision is structured the way it's structured i will say that you know when you read it obviously it goes through floor of the steps because it starts with the jurisdictional non frivolous allegations that's for some of the allegations and then moves forward to look at the different contributing factor analysis with the different positions and and i will also add you know most of the disclosures in that nd opinion are just raised in that e mail and that's why there was there was focus on that and that e mail really raised if the court determined that the agency's decision is not supported by substantial evidence and i think that that's the finding that has to be that wasn't a violation of remit here there was still a step to be taken i think it's knowledge of the opinion and it's clear in the not make the finding and instead repeated the decision in a way that flatly contradicts the got one well that's it that's the court's finding regarding her decision proven would be a protected disclosure and he did prove his allegations as i've articulated secondly on the substantial evidence question there is no substantial evidence supporting the judge's decision she ignore key principles and delgado won she got other legal standards simply wrong for example it didn't matter that just because delgado and a lot of know had different vantage points or that love now might have had a quote unquote better vantage point or that there was a reasonable debate about the facts that don't got oh couldn't make a protected disclosure based on what he saw from his vantage point also the the administrative judge got key facts wrong that she herself delgado did not have to prove that there had been perjury he only needed to make any disclosure that evidence to the perjury that's me but i didn't write that you would be saying it excuse me when i make sure that we get through it before your kind of that decision alternatively is not supported by substantial evidence and is arbitrary and capricious because she does ignore certain principles and delgado once she gets other legal principles wrong as i said it's just not the case that simply because there are two reasonable views of the same offense a whistleblower can't make a disclosure protected disclosure based on his reasonable view and she as i said also got key facts wrong and ignored other key respectfully is perpetuating the same flawed reasoning that the administrative judge is perpetuating in violation of delgado one and for that reason i think you can consistent with wilder and he simply direct relief the other thing i would reiterate is the court has also said that you don't have to remain and when the result is for ordained and there's simply no way that the a t f proved by clear and convincing evidence  that they would have made the same decision anyway for one of the chicago supervisor positions for example mr delgado was the only candidate and everyone agrees he was clearly qualified for that position he did in fact  acted in that position previously without issue everyone agrees that the interview panel included an individual who knew about the disclosure and on and on i don't see how the a t f could possibly prove its case given those facts and the the last thing i would say is there is often going to be disagreement over whether someone has violated the law but unless we are going to discourage whistleblowers from coming forward a disclosure can't be unprotected just because there's reasonable debate we want whistleblowers to come forward with evidence of a violation of the law and that's precisely what mr delgado through all of those reasons we would respectfully ask the court to reverse