provided a legitimate just justification for the reassignment oh mr miller who had been the superintendent of the industries based upon the standard that is required under the whistle for statute which is the clear and convincing level of proof standard and in so finding the administrative judge relied on the testimony of one individual that individual taken out of his position as a superintendent of industry there was no other testimony there was no other documentation there was no other support let me ask you this hypothetically because i'm trying to understand exactly what your issue with th sufficient reason for the agency established by clear and convincing evidence that it took the personnel action for a reason other than whistleblower tell us so the reason it self you agree is sufficient yes so we're just talking  brought into question the words motivation right right i understand that i'm just getting at this specific reason and and whether the reassignment it would be a good reason to reassign based upon a pending alleging investigation if true ok by clear and convincing evidence not not simply by a preponderance of the evidence but what the supreme court weighed i'd i'm still not sure that i'm getting a clear answer to you to judge sauls question do you are you arguing that hearsay evidence is not sufficient to to meet a clear and convincing evidence standard on uncorroborated hearsay evidence is correct it's legally insufficient to meet the clear and convincing at the daintree stand why is there any difference i mean you agree that hearsay evidence can be used at the board i mean they've how that we've held that it's it's i to support a clear and convincing evidence fandor here it's hearsay evidence can absolutely be used in order to support the clear and convincing every directory standard but in order to determine whether there is a clear and convincing the level proof one has to look at all of the evidence and it's the only ok i get that but so you're saying that it wasn't improper for the a j to rely on this habit and it was just not sufficient evidence for him to reach a clear wording testified at length right and i think there was an opportunity for cross right and a j got to hear all this testimony and made a factual conclusion that in addition to the reassignment being directed by  g there was all the other evidence and irrelevant card factors and don't we review could we review that for substantial evidence if yes correct and substantial evidence is just evidence that a reasonable mind could rely on to reach a conclusion after considered ration of the record as a whole right and if one were to consider so my question then is if you have the testimony which seems to be pretty clear and consistent from a guy supervisor saying exactly why it took this action and we have no reason to disbelieve it i don't think you've challenged it as being a lie why isn't that substantial evidence  while i understand that but i mean on appeal we're at a pretty big disadvantage if you're asking us for the first time to make a determination that live testimony that the a j heard and relied on in his opinion wasn't credible i mean what basis could we have for doing that when the a j is the one that heard the live testimony at the others your client's other counsel had the opportunity to cross and and demonstrate the incredibility of that testimony in the a j didn't find it incredible implausible about the words testimony here what is inherently implausible is is that the warden assigned mr miller to make work for four and a half years paying and his g s thirteen salary which was that substantial salary where for eight months he sat on a couch at the administrative offices doing absolutely nothing when he was wiping tables when when he when he was on the was interfering with him best occasion then they've got to put him somewhere in the wording testified very specifically about why put him in various positions and then had to remove him from them because he was even still interfering i don't find that inherently implausible i find that you may disagree with it but it seems like the wording was giving a very specific answer to both why initially reassigned him and then resigned them to other even more unpleasant or or make worked up the  didn't give the substance of the conversation and most importantly actually has no involvement over the supervisory management of staff so all of those things point to the fact that the word testimony is not plausible and is not credible even though the word said it and it was have to help how can one challenge someone to testimony other events to to bring in facts and circumstances mean your view that there is no detail seems to be belied by his testimony which has very detailed things about why as assignments were changed over the course of this period i mean it's not that he just willy nilly said i'm going to put you on the food services line and then i'm going to take you off and put you monitoring phone calls and then he gave specific reasons for why he made each of those changes isn't that detail consistency the right well i do not read read read or call off the table today it was because there are he said that he was told to move them again because he was talking to people during the lunch time that interfere with the investigation and so and explained it in great detail and so does that corroborate the question is just does that the fact that i doubt if there wasn't the best occasion and then later there were the warden testified about  mr miller interfering with the investigation when he was on capital your duty of interfering with the investigation later when he was monitoring a person or a telephone calls does that corroborate  statement standing alone without anything else can support a clear and convincing standard that is contrary to the so in other words you want to us you want to impose us to impose a corroboration standard in these  whistleblower cases when it's the testimony of the supervisor based on what you call hearsay when when the when the when the warden have the wherewithal when have we done that in any other i mean is it do you have i mean we have a clear  convincing evidence stand in or in our patent cases and we review those for substantial evidence to we don't have a heightened standard just because there are substantial evidence i think i mean it seems to me  to justify an adverse personal action does not as a matter of law rise to the clear and convincing so you are saying that hearsay can never form the basis of cannot be clear and convincing evidence standing alone i am saying that on corroborated herrick you're saying standing a little without any other evidence at all yet that is what i'm saying that uncorroborated hearsay standing alone cannot support the j emphasized that several times as being in addition to the fact that there was the warnings testimony that mr miller was being reassigned because there was a concern he wouldn't interfere with the investigation that right that it to the right to shut up by december fifteenth and mr miller stayed home from work that day well the next day he came back to work and he reported what he viewed to be sabotage but that was the day after i g arrived right the the the you warden but mr smith's mr miller testified that he was told to stay home trying to figure out where what to think here and so what i had said is i said what about the fact that the board relied on the existence of an investigation prior to the december sixth disclosure by mr miller you don't disagree that there was an investigation by oh i see already right i think your response was oh that's hearsay hearsay but but there was an investigation that was already occurring before mr miller's december sixteenth disclosure my my understanding of the board's just situation was that people were concluded that mr miller may protect tech to disclosures and that there were adverse actions taken against him the adverse action being that on december sixteenth he was told that he was being removed as the super superintendent of interest industries so i think that he satisfied the the two of the three components that he had to have satisfied and then it was up to the agency to establish by clear and convincing evidence that taking him out taking him out of the position not withstanding the fact that there was an investigation going on was justified by point the clear and convincing evidentiary standard ok i have one more question for you very quickly i know is that the case is miller against the department of justice and that the car factor as i understand it that second per factor is the existence and strength of any motive to retaliate on the part of agency officials that were involved in the decision yes who should those agency officials seem to be the warning should they be why is the case against the department of justice i mean the warden is an employee of is not record including that which tracks from the weight of the favorable evidence and taking into account there were wired quantum of proof that no reasonable fact finder could have made that found that finding and here we have a decision of the board looked phone call there's no letter meeting or anything of that nature that there you're correct your honor that there is no evidence of the substance of the conversation that the warden had with the oh i g especially that or the o correct but we do have corroborating evidence as it and the warden stated in december that december day to mr miller why he was being asked to be removed from that and that is recounted in mr miller be reassigned permanently because there was a concern by o a g that he would interfere with the investigation there's nothing like that not in the e mail not correct your honor there the word does later testified that so any also discussed a little bit of some of the collateral duties that mr miller was assigned to specifically that mr miller was available to have just like any other correctional officer but he didn't talk about the meeting on december sixteenth where he talked to the warden and then they talked about how the oh i g had told the warden that mr miller should be a or they requested or directed that mr miller be reassigned they didn't mr always been focusing on the december disclosure but there was an october disclosure to that is correct your honor and does that predate the oh i g investigation it's a little unclear in the record i believe that it did not but the don't know correct the record doesn't doesn't reflect that correct that testimony about the october disclosure comes in through mr and then later on in some of the papers or suggestion that the warden was also present during that october when it could have been that the investigation no idea investigation started after the october disclosure that could be your honor we don't know because the records are not complete on that doesn't answer that question correct your honor in the board did not make a determination as to the timing of this to i guess disclosures that became you know but they did make a recommendation or they did find that the two disclosures met the timely the time in this requirement for a whistleblower disclosure correct your honor the the board did make a determination that under the knowledge timing tast at least the initial october disclosure and that the tast and that is why we're here today on the the last part of the lower case and that is whether or not the partner of justice demonstrated by clear and convincing evidence that would have warden on that particular point or to establish the record to back up the mr warders recollection of the phone call well the warden clearly testified about his recollection of what he was  some of his reasoning for some of the warden's reasoning for the reassignment and we also have the words testimony on five sixty seven where he was directly and asked if he was intending to harass mr after i guess after the factory closed down in your experience with there normally be a reassignment letter in circumstances like this well mr miller prior to i mean that's what i would point to the part of the record that your hon r just went into is what i would point to to demonstrate that the employment decisions that were being made because in till then he was still a member of the executive committee of that of  this in this case you know i have no understanding whatsoever your honor over there that there was any e mails there there is an indication i think unpack page five hundred forty six or forty four where the warden  because he was asked to do so biology so why do you ask him to make the transfer well to her to take him out of take him out of its present duties and put him somewhere else the warden was asked to remove mr miller from the premises of the factory so engine ok then after that after he was transferred out of his regular duties are you saying that oh i j made that decision and what decision is that your honor to transfer mr miller to take him out of being super tenet of prison industries and to put him wherever else they put him and monitoring prison phone calls for cleaning the tables at the mess all the collateral make that decision to to make that assignment on the basis of what something or why g told him to the particular collateral duties that were assigned your honor i guess i don't understand ok the warden reassigned or assigned mr miller outside of his regular normal duties correct yes or ok on what basis was that reassignment made and you're telling me then it's mr it's warded up show that that made up his own mind that mr miller was interfering with the investigations well there were a series of conversations where though i g information for instance  the the investigation so learning that once again if there is that the that the same or if that in a fit is that what you mean by interfering with the with the investigation well learning of the investor whip case and you said that this court in the government's view what this court has to do is look at whether there's substantial evidence taking into account the required quantum of proof so and so in other words as you said in your brief in page fifteen we are supposed to see whether that your partner of justice proved by clear and convincing evidence it would have reassigned mr miller even in the absence of his protective disclosures we have to look at whether that is supported by substantial evidence so we have to continued interference of him with these investigations and that substantial evidence correct even though arguably you could have done a better job of providing corroboration for th statements by the warden about the reason why he reassigned them and we could have inconsistent testimony for instance for reasons to doubt the warden's credibility which it would  credible credibility involves a whole host of different issues in this case in order to get to the merchants much protection board an individual would have to a first contact at the office of special counsel the office of special counsel has trained investigators they made inquiries they contact the agency if the office the special counsel did it to clients to go forward with a whistleblower action then and then the individual who brought the allegation to the office of special counsel can found appealed mercilessness protection board the agency was represented by a skilled attorney of the agency has i'm sure had other whistleblower compare complaints filed against it the agency had full knowledge of what its burdens work the agency had full knowledge of what the standards were appellant were and the obligations of the agency for the agency to act on and say the warden's testimony which is unsubstantiated even though we have the wherewithal to bring in whom ever we wish to support or it corroborate that were muslim isn't that a question for the a j unless we adopt a rule that unsubstantiated testimony can't meet the clear and convincing evidence in this case or i wouldn't say they've been put on very good evidence they didn't put on evidence be on the words testimony and the word of the guy that did the reassignment it's understandable that they could have put in documents and the like or what i gather you're saying there i know there wasn't credibility for express credibility finding here but supposed to bork the suppose you had cross examined him about whether he was lying or not and put that issue in the board judge said i listen to his testimony i've looked at all the facts in the records given that i believe his story his story was consistent clear and credible with that he sufficient evidence to support a clear and convincing evidence and so you want to salvage the rule of testimony without justify it's his or her ruling for instance if we did ministry to judge states i looked into the case of three of the witnesses and i believe the witness was truthful and that was the could have been sustained now what is the other evidently though i mean it seems to me all you're doing is pointing to a lack of a crab orating evidence you're not pointing to any positive evidence that directly contradicts the warden stor is the agency's burden to show by clear and convincing evidence a burden is not established by unsubstantiated uncorroborated hearsay evidence and mind last argument was that the you know it is my understanding that there are there is a review of the v there was a review of the decision to see whether the there was substantial evidence supporting the conclusion that the agency had shown by clear and convincing evidence that the reassignment was just justified ok we're