yet morning may please the court my name's michael may come by represent the appellate in this matter susan heller two issues i just want to address right off the bat first i'd like to thank the court and specifically mr lott craven for their understanding of granting the adjournment to attend a family emergency i greatly appreciate that and i greatly appreciate those encounters consent the other issue is more directly on this case a couple days ago came to my attention of a presidential decision that just came down from this court of about ten days ago the sharp versus department of justice to case provide a copy to mr craven last night as i was going through it i have copies for the court's consideration today and happy to brief the issue or discuss it's a very short decision if you like to consider why don't you submit it with the rule twenty a three issues before the court this morning on whether or not the administrative judge abused his discretion in denying this heller the opportunity present witnesses during her hearing as well as whether the administrative judge abused his discretion in denying her continuance to present or her prevailing submissions during the proceedings below the third issue is whether the administrative judge erred in finding that the respondent the the agency established by clear and convincing evidence it's affirmative defense that it would have taken the same action with respect to the first argument there the facts of this case are pretty clear the case had been put on a case is trenchant back in may of two thousand and fifteen may twelfth two thousand and fifteen at which point in time the administrative judge did not issue his pre hearing order until five days before the presents missions were due miss heller pro se at that time it was not understanding what was involved in the pre hearing submissions and immediately filed a motion for a continuance that same day in her motion she set forth good cause why she needed an extension of time to prepare her printing submissions at which point or for a good cause consisted of i believe it was for different things one being that she needed additional time to go through thousands of pages of documents that the agency had dumped on her a couple of days prior to that she was looking to retain counsel to assist her in the preparing submissions that she did not understand what was involved three that she the pre hearing submission or the pre hearing order from the administrative judge had come down five days before the pre hearing submissions were due and for she was currently out of state at the time when she previously notified the court about factoring in earlier status conference which led to the case suspension the all four of those issues were north by the administrative job that you will of course as i understand the the order was made twelve seventeen suspending proceedings and then you have the order of the judge issues  on its july nineteenth correct i believe so during that period with the with the again from what you just said the parties were engaged in discovery yes your honor between middle of may and middle of  basically two month period there yes the case i believe it been put on cases fanchon and there was a prior motion to compel filed with regards to document production that had not been turned over i believe that document production was turned over just prior to that july nineteenth pre hearing order from the administrative judge to the point is the the name nineteen order does state but that pre hearing submissions would be due on the twenty fourth of july but your point is that you didn't state what the contents of those submissions would be correct your honor and if you look at the board's regulations at five c f r twelve zero one there's no guidance on what goes into a pre hearing submission every one of these administrative judges as the discretion to do their pre hearing submissions as they choose some have very bare bones preparing some actions some have much more comprehensive in this case this was a very detailed three hearing order that set forth all the evidence and witnesses that need to be submitted this coming off the tails of the agency producing a proverbial document dump on the appellant at that point in time that she was still sifting through that this time she didn't have any she was representing herself in these proceedings which she consoled me at all with any counsel not to my knowledge your honor she was escorting to the proceedings below she was pro se during that entire proceeding as you can see right on the initial decision itself she's indicated as p including the names of the witnesses she would have called to testify including the testimony they would have provide she even go so far as to identify the car factors which is what the key issue at this point in time you know that whether the agency had proven by clear and convincing evidence it's  legitimate reasons there for terminate or resigning her position but she goes through and identifies these witnesses are going to testify that car factors are wanting just want to clarify when things were at this point for the parties aware that the sole issue before the administrative judge hearings going to be whether the agency the stablished by clear and convincing evidence that it was that would have taken this action anyway i don't think so while the administrative digicel did make a jurisdictional ruling finding that miss hiller did establish that jurisdiction of the court below which does cover the prime official case of an ira appeal there was no stipulation filed saying that the only issue on appeal would be the agency's burden to establish by clear and convincing evidence so the first time that was finally determined is in the ages decision i believe so your honor there's nothing prior to that it is dr submission you know with ms hill or not being an employment attorney not having practice before the merits of some protection board and not understanding what the administrative judge may have necessarily required i don't you know she did not go down in do any bulleted or a number and factor if you look at the appendix right there i believe it's ninety four through ninety six miss hill or goes through and specifically highlights the testimonies of ransom russ r and hamilton who would have all testified to all three of the car factors each one of them was going to provide testimony that would have rebutted the agency's affirmative defense there unfortunately the administrative judge didn't do that at all what do you think about the pre hearing of submissions for this before the board is different than pre hearing submissions for other glynco which is one of the our cademy is where they treat law enforcement officers she was in practicing routinely in district court things of that nature where you know yes courts do typically require some form of free hearing submission but as you can see from her pleading this is not something she was routinely involved with and as her motions demonstrate and her free hearing submissions she was trying to focus on the substance of the issues as opposed to some of the procedural issues and get the evidence in front of the judge and that's where the abus discretion happened here the judge didn't give her the opportunity to develop that record and now we're all a disadvantage to determine whether or not the agency commute its burden to establish by clear and convincing evidence you know i apologize i don't know specifically where she is right now by ok but there's no point for loss of pay or anything like this in this case as i read what's at seven thirty three she wants to be sent back either to charleston or i think she mentioned boston you know the quibbling position that's what's there but it appears from the record that charleston is no longer in operation in terms of what she was doing there assume for the moment we would agree with you what is the exact relief that is being requested you a new hearing or or what damages as well she could also provide a motion for attorney's fees and costs that she's or you know incurred with before this court and on the remand there so there is certainly relief still to be had there the the fact that three years later this position had been drawn down the division had been abolished is certainly affects what those damages entailed but it doesn't affect whether or not there was a personnel action and it doesn't affect whether or not she could still become the prevailing your friend's argument that he went there she didn't have a specific witness list her reviewing submissions and we're timely clearly that i tried all the necessary witnesses while the pre hearing submission the order from the from the administrative judge appended sixty three was pretty specific about the requirements they wanted a list of the witnesses a detailed summary of their their location and the reason why that was important is well there are two reasons first in the  the original pre hearing conference order the administrative judge specifically said that witness requests will be reviewed in detail and the facts and issues will be discussed so there is a need to identify who are the potential witnesses who might  see you know is there a crossover between the two parties and also many of these witnesses were agency employees so the agency personnel who is representing the agency in the board we need to know who do we need to to to contact to bring them into this appeal and who do we need to sit you know who do we need to help mr hill or arrange for their testimony and so by not providing that information in advance of the pre hearing conference or in accordance with the extend the deadline  factual or legal assumption underlying the decision in whitmore it was what's the scope of the employee's burden to so what does he need to show in order to present this affirmative defense and because the administrative judge misunderstood or misapprehended his legal burden she denied him the ability to call certain witnesses to testify about those those decisions but importantly and widmore when this court just when hearing so in this case there's no erroneous factual or legal assumption that's underlying the administrative judge's decision to grant partial relief on her extension emotion but at some point  or of course it would depend on the context in which that decision was rendered so in a certain context it might be an abuse of discretion in a certain other context it might not be an abuse of discretion so in this context the administrative judge did not abuse his discretion in granting partial property as part of the record does not speak to any of the car factors or at least with any personal knowledge one of the witnesses would have to guess why her position was eliminated it seemed funny to him but is it true your point is that because none makers testified she cross examine them there on the stand with her for about three hours during the course of a half day hearing so she had the opportunity to to examine the witnesses who testified in support of the agency's defen i specifically want to address that with more decision because i think the whittemore decision in a case that i referred to at the beginning of my argument is directly on point here and whitmore the administrative judge denied the appellant the opportunity call any witnesses with regards to that ira appeal the one witness that was  d was not relevant there was coming in for character evidence and wasn't even an agency employee and that was all part of the judge's determination as to why not to call that decision or that witness i should say more importantly though the court in whitmore highlights that you know when whistleblowers by the very nature are the severe disadvantage in proving their cases ira appeals are very very hard case to try and prove and it is especially hard for this courtroom view when the record has not been properly developed as it wasn't in whitmore and that's the exact same fact pattern we have here just told us the question is whether or not these witnesses testimony would not be relevant their testimony would have been relevant their testimony was specifically gone towards the car factors the strength of the agency's reasoning the motive behind that and whether or not similarly situated employees were treated more favorably how do you respond to specific point say at least for motivation to be looking at that decision made because they're not the decision makers  relevant i disagree with that i think you know in the work environment so much good gets developed between you know what other employees know and learned when you look at the record itself hamilton test of our what have testified that everybody in the office knew that they were out to get her i believe it was mr ransome was was expected to testify that she was quote unquote a trouble maker and management was specifically out to get her obviously management is not going to go in and testify that they believe mr heller was a troublemaker that mr cameron believed that you know they were going to retaliate against her that never happens and that's why i are a appeals are so difficult we rarely have that direct evidence and it's your view th the ministry judges comment and decision about knowledge again that she had this reputation in the office wasn't sufficient no because the judge is just scratching the surface his decision is as well acknowledges that he acknowledges the the email from one manager to another dobson to knutson where he specifically says correspondence about miss hiller's dozens or hundreds of complaints i forget the exact verbiage and then mr knutson directly impacts the decision of mr cameron the ultimate deciding official there i understand that we you know we have to go through these management changes here and understanding what their rationale is but the testimonies of ransom and russ are in hamilton would have gone directly towards that motive and therefore their legitimate reason of business needs in our brief we talk about how the evidence directly contradicts this and the fact that these courses did not fall down for another period of two or three years yet mr hill is hiller was the first on the chopping block so all of that evidence should have been considered in the problem we have is that the record was not properly developed i do see i'm over my time if there's any additional questions i'm happy to answer thank you thank you very much