of the whistleblower protection act states that its purpose is to encourage the person's actions to strengthen and improve protection for whistleblowers and to help eliminate wrongdoing within the government by mandating that employees should not suffer as a result of a prohibited personnel practice so when a whistleblower says they've suffered and they have first consequence is i understand if the government can defend by saying it's exactly the same consequence you would have suffered had you not that was why yes said that a fair summary of the case law yes or no and there was a hearing and the a r j said i fear the evidence on both sides you've got some good evidence whistleblower but there's some other evidence and i find that in the end you were treated the same way you would have been treated had you not been the person who blew the whistle how do we review that determinate that's a factual determination is it not yes your honor and we were reviewed for substantial evidence ye so is your position that there was no evidence that supports the case funny yes well yes and a lot of people were transferred yes so it can't just be so even if she weren't the whistle blower i mean i know you make a separate argument though it were decided that if she had gone the whistle in the first place nobody would have been transferred who put that aside for a second given once disclosure was made it was inevitable that some people would be transferred correct was not inevitable that's why they could take their contract with the u s d a was cancelled there was no need they were no longer had inspection duties at this particular location she wasn't the only person transferred others were to record shows that if they had done so miss al gore would not have been the most junior person identified and that thus she could have retained her job the p a could have been upheld and yet the u s d a could have addressed its legitimate overstuffing issue here but then don't you have to show that their failure to do that their decision to address the wider jihad of marriage or graphic area was motivated was in response to her whistle blowing she that's one of the problems i'm having with your argument that they made a decision it may have been the right decision or the wrong decision but what how big an area to to consider lots of people got transferred and so the question is how do we how do you show there's a how do we determine there is no evidence at all that she would have been treated the same way in the absence of her whistle blowing how do we tie her whistleblowing to want to do the actions that occurred your honor at this point has been conceded by the u s d a and the j where in the excerpt of record on page seventy six and on page one twenty they both know that the snow has contract cancellation led to the u s d a s decision to reassign though nobody doubts that nobody doubts that the contract cancellation occurred because of your client's admirable efforts my question is different my question is how can you show that transfer occurred because every whistle blowing in a way that it would never occurred had someone else blowing the company can you show me why your client was treated differently under this circumstance and she would have been treated under the circumstance where they just terminated the contract your honor the question is not whether she was treated differently the question is whether the action that the u s d a took violated the deputies mandate that she not face an adverse personal action because she'd made the disclosures because that causal link that connects her disclosures to the cancellation the contract to her reassignment so then you the whistler protection act also protects the whistleblower in a case where there ensnared in the corrective actions of the agency takes to address their own disclosures and thus she is protected by any agency action that it takes in response to those that to the overwhelming evidence that the loss of the contracts over the year and a half or so prior to this algarve since closure or resulting in a tremendous loss of revenue in the hundreds of thousands of dollars and then  disclosure as you pointed out ended up with the circus contract being cancelled and then there was several others i mean i can recycle which contracts are work but ultimately what happened is the agency is overstaffed under budget now and they need to do something and this agency well what your response so that if they do whistle blower if they result of the whistle blowers whistle blowing requires a lay liability that if there were that's what i understand they're saying is a strict liability statute because if if if a minus specter goes in and finds serious safety violations that he or she knows will result in the mind coursing down the argument might be well there be reluctant to disclose that because they're going to lowes or job because the mind goes down or in this case they lose their job because they lose the contract for the agricultural special services and we understand that take an adverse employment action against me that arises that was caused that was caused by my whistleblowing and that is i believe not the correct interpretation of the whistleblower protection so what do you think it does it says besides having to prove this causal relationship which is what has been argued here there has to be retaliatory in intent and in this case means all guard was caught up in an unfortunate reduction in the number of people that the acma the station and the agency had the duty to reassigned because they're over budget over staff and where miss of arts case feels is the retaliation isn't shown the only link she has shown is the timing between her disclosure regarding the moldy apple sauce totes and the reassignment decision but all that gives you is it is an inference that there may be some recant who's burden is it under these circumstances to show either retaliation or the absence of retaliation there if there were problems with closures in the agency elected not to transfer anyone and only decided to transfer after she acted as a whistleblower what's your response to that argument which w show retaliatory impetus the record of pictures that mr oxford who was the officer in charge a supervisor at the point of the acma duty station had already looked at this they had lost the simmons food one retirement at one facility in the at the lamb weston plant there was going to be an assignment of one of the employees to the delmonte plant and they were waiting for retirement of a mr pierce but those didn't happen in j says the government you're you when you you you're you're better off in two parts and on the third part i do find evidence of retaliatory motive why isn't is what we do that well for one you will recall that he found that the evidence of retaliation was weak and he described it as weak and he gave it he did find it it is cut in favor of his own guard he did but it but it was very weak what i think the a l j did not  consider the three factors and car and the judge they l j found heavily that there was evidence that the agency would have taken the same action to even if you have a motive to retaliate but it turns out even  you would have done the same thing that it's ok that the the direction in part of the cases since then is that that judge balances those or considers all three so there was some motive of retaliation but there was overwhelming evidence that the agency would have taken the same action without that was a point and then the third factor the similarly situated the agency on remand submitted a tremendous amount of evidence of thirty employees thirteen of which were exactly i don't want to put words in in councils now is that none of those purportedly similarly situated employees have been whistleblowers assume that's the argument he responded that they were not  think that is correct because what i know so so can they be similarly situated if they were whistleblowers well i think everything up except for that yes and if they're otherwise simply scituate that's the analysis is you have to look did i think the cases are very clear these employees were similar situated they were agricultural commodity graters that last or where they were working was had a reduction of business and so they were similarly situated and then they were reassigned that makes them fifth circuit are you familiar with that case well that case basically stands for the proposition that the first circuit has said that the statute does not even apply when the whistleblowing is is against you when you're when you're when the bad conduct is by a private individual as opposed to a government employee in the circus adopt of that argument and i think the fed circuits alluded to it in a case are you arguing that position or you are we are here or we have we reach that issue if the a o j didn't j didn't base his determination on that is it jurisdictional as judge malloy suggests or would you do if we were  article three jurisdiction when it let that let that affect article three jurisdiction or whether or not the parameters of the statute were satisfied which will it be statutory jurisdiction and i think the latter that you describe is what's at issue here whether there's even falls within the realm of that statute and i think that's an issue that this court could take up and we had argued and i see my time is up once you have another question it appears not thank you very much thank you counsel council before you begin what's your response to opposing counsel's argument that this action does not fall within the whistleblower statute because there was no whistle blowing related to a private entity as opposed to a receiving significant revenue from smokers stand had a stake and it's here but there's no allegation here that anybody any government employee did anything wrong is there in other words she didn't go in and said i i just discovered that the previous inspector was taking bribes w p a is looking to correct governmental wrongdoing it is not always the right what would be the wrongdoing on the part of the government i could see if maybe one of the inspectors was looking the other way while the tainted apple sauce didn't mention today o j that she mentioned it to mr augsburg and he told her to mind her own business as long as it was not a u s d a that but the actual whistle blowing was aimed toward the private agen private company not toward mr asked for her right correct correct ok so what do you do with that your honor did the purpose of the w p a is to correct wrongdoing within the government and here  government contract that the u s d a a government entity had reason to cover up had reason had a stake in its healthy operation let's ask the question differently let's assume that there is no jurisdiction here because indeed make protected disclosure under the w p a and the parties are that's either that's that's that's not the question i asked you we all agree she made a protected disclosure for purposes of this the question is whether or not you to all counsel and special thanks to the students from pepperdine university for appearing here the case just argued is submitted for decision by the court