[00:00:05] Speaker 03:
The first case for argument this morning is 18-1414, McGinn versus DHS.

[00:00:14] Speaker 03:
Who's arguing?

[00:00:30] Speaker 03:
Please proceed.

[00:00:31] Speaker 00:
May it please the court?

[00:00:32] Speaker 00:
My name is Erin Zott, and I represent Petitioner Leanna McGinn in this case.

[00:00:36] Speaker 00:
I'm here with my co-counsel, George Chousy.

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The purpose of the Whistleblower Protection Act is to encourage disclosure of wrongdoing to persons who may be in a position to remedy it.

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Whistleblowers are encouraged to make such disclosures by providing protection against retaliation for making such disclosures.

[00:00:55] Speaker 04:
We're pretty familiar with the Whistleblower Protection Act.

[00:00:59] Speaker 04:
Tell us about why your client

[00:01:01] Speaker 04:
wasn't properly handled by the government in response to all of these issues?

[00:01:11] Speaker 00:
In 2013, Ms.

[00:01:13] Speaker 00:
McGinn disclosed over $9 million in cost inefficiencies at the Los Angeles field office.

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That same year, she disclosed that one of DHS Air Charter contractor's CSI was over billing the government at over $2.5 million annually.

[00:01:29] Speaker 04:
Was that her job?

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Was she an auditor by assignment, or what was she doing?

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Ms.

[00:01:35] Speaker 00:
McGinn was a program manager, and the core function of that position was auditing.

[00:01:41] Speaker 03:
Was she the chief of staff then, or did that happen later?

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In 2010, she became the chief of staff, which was a corollary duty.

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In 2012, she became a GS-15 program manager and maintained her chief of staff duties

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until Mr. Longshore came into an acting assistant director capacity and removed her from her chief of staff position.

[00:02:04] Speaker 04:
Wait a minute, you just lost me.

[00:02:06] Speaker 04:
The events at issue occurred while she was chief of staff or while she was program manager or was she both?

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She was both.

[00:02:16] Speaker 04:
She was both.

[00:02:16] Speaker 04:
Okay.

[00:02:17] Speaker 00:
In 2012, she was both a program manager and chief of staff.

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Significantly, on July 26, when she made her first disclosure of over $9 million in cost inefficiencies at the Los Angeles field office, which directly implicated Deputy Executive Associate Director Timothy Robbins

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who was previously responsible for overseeing that field office.

[00:02:41] Speaker 03:
None of that is in dispute in this case, right?

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The dispute here lies in the conclusion that the agency has proven by clearing convincing evidence that it would have taken the same actions regardless, right?

[00:02:54] Speaker 00:
That's correct.

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So what is your argument with respect to why they have failed to do so, given the standard of review with which we apply to AJ's opinions?

[00:03:07] Speaker 00:
Two points.

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First, the administrative judge failed to address two of Ms.

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McGinn's claims, specifically her removal from ground transportation duties upon her second audit of cost and efficiencies at the Los Angeles field office, and her second removal from ICE air operations and auditing altogether

[00:03:28] Speaker 00:
following her audit of CSI Aviation, in which she uncovered over $2.5 million in overbilling annually.

[00:03:35] Speaker 03:
You do make the argument repeatedly in your brief about the AHA having failed to deal with some of these issues.

[00:03:49] Speaker 03:
I'm not as familiar as you.

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We're at appellate court.

[00:03:51] Speaker 03:
I don't know exactly what the details are of every assignment she had.

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But it seems to me, in reading the AJ's opinion from page appendix 23 to appendix 26, there's a lot of discussion of other changes in her work schedule and her duties other than just the chief of staff positions.

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So your argument is,

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They didn't consider this.

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They didn't deal with it.

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They didn't opine on it.

[00:04:20] Speaker 03:
And there seems to be a fair amount of discussion about those issues, right?

[00:04:27] Speaker 00:
Not exactly.

[00:04:28] Speaker 00:
So there's a fair amount of discussion about three personnel actions, the first being her reassignment from the chief of staff position, being assigned selection memos,

[00:04:37] Speaker 00:
and not being selected as chief of staff of the transportation planning and acquisition unit.

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However, the initial decision is silent on the two claims, Ms.

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McGinn's removal from ground transportation following her audit of the Los Angeles field office, and her subsequent removal from auditing duties altogether following her decision.

[00:04:58] Speaker 02:
What about on page A24?

[00:05:00] Speaker 02:
On page A24, it says, Ms.

[00:05:02] Speaker 02:
Cain testified that she did not assign any audit work to the appellant.

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for example.

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The next paragraph down, it says, her responsibilities for audits diminished.

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There's other language with respect to the loss of auditing work on page A24, at least.

[00:05:21] Speaker 02:
How can you say that it's silent as to that?

[00:05:26] Speaker 00:
The fact that Ms.

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McGinn was removed from auditing is not in dispute, and that's

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corroborated by Ms.

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Cain's testimony that she just referenced and Mr. McManamy's testimony as well.

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However, the administrative judge made no findings with respect to those claims.

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At the end of that section in her initial decision, she finds that the agency proved by clear and convincing evidence that she would have been reassigned from a chief of staff position.

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that she was not.

[00:05:53] Speaker 02:
Where's that?

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Because I'm looking on page 826, and it says, the agency is established by clear and convincing evidence that the appellant's work assignments were not related to her protected disclosures.

[00:06:05] Speaker 02:
It's not limited to the chief of staff position.

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So those assignments are limited to being assigned to draft selection memos.

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The core function of Ms.

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McGinn's position is her auditing duties.

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Those claims are not addressed by the administrative judge.

[00:06:22] Speaker 04:
I thought she was Chief of Staff at that time.

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Isn't that a core function of her duties?

[00:06:30] Speaker 00:
It was a corollary function.

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So she was a program manager first and foremost and also the Chief of Staff for Assistant Director Helwig.

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And when Acting Assistant Director Longshore came in and she made her first disclosure, she was on the same day removed from the Chief of Staff position.

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Although the administrative judge credits Mr. Robbins' testimony that it was typical for assistant directors to bring in their own chief of staff, what's absent from her decision is the fact that Mr. Longshore was acting in that capacity for only four and a half months, and he himself testified that there is no protocol for someone on a detail to bring in their own chief of staff.

[00:07:12] Speaker 00:
There is no documentary evidence supporting Ms.

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McGinn's removal from her Chief of Staff position.

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And this court in Miller correctly recognized that with these types of reassignments, you would assume that papers would attach.

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All we have with respect to Ms.

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McGinn's removal from her Chief of Staff duties is Mr. Longshore's uncorroborated testimony that

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Prior to his arrival, he was already working to plus up personnel.

[00:07:41] Speaker 03:
Wait a minute.

[00:07:41] Speaker 03:
I thought there was a lot of testimony from different people that the standard thing was for a new person to come in and pick her own chief of staff.

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Am I missing that?

[00:07:52] Speaker 03:
Missing something about that?

[00:07:53] Speaker 00:
Two people testified to that.

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Mr. Robbins?

[00:07:55] Speaker 00:
Okay.

[00:07:56] Speaker 00:
All right.

[00:07:56] Speaker 03:
So you've got several people testify.

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You've got long choice testimony.

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If the A.J.

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gets to believe who she wants to believe, and we have a hard time here at the appellate level of saying that the A.J.

[00:08:10] Speaker 03:
erred in her credibility determinations, right?

[00:08:14] Speaker 00:
I'm not asking this court to reweigh the administrative judge's credibility to determination.

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But this court can decide how much weight to give that credibility determination when looking at the record in the aggregate.

[00:08:25] Speaker 03:
Here, because- I don't understand the weight.

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He decides to credit their testimony.

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He decides it's credible, and he's going to credit it.

[00:08:33] Speaker 03:
You're saying that here at the appellate level, we can't disagree whether he credits it, but we can say he gave it too much credit?

[00:08:40] Speaker 03:
I don't understand the point.

[00:08:42] Speaker 00:
This court must review that finding to determine whether substantial evidence supports that decision.

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And here, the initial decision is silent on the countervailing evidence that undermines that testimony.

[00:08:55] Speaker 04:
It isn't just substantial evidence.

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I thought it was clear and convincing.

[00:09:00] Speaker 00:
So this court's standard of review is for substantial evidence, but that reads into the underlying burden that the agency has, the clear and convincing burden.

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So when reviewing for substantial evidence, it's to determine whether the agency met its steep burden to prove by clear and convincing evidence that it would have removed, in this instance, Ms.

[00:09:19] Speaker 00:
McGinn from her chief of staff position absent the whistleblowing.

[00:09:24] Speaker 03:
But I still don't have an answer, I don't think, to my question about you said your answer to our deference to credibility determinations is, yeah, but you get to decide what weight they should be given.

[00:09:37] Speaker 03:
And I don't understand the parsing there.

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There are three or four people that testified in one way with regard to one thing, and the AHA says, I believe them.

[00:09:48] Speaker 03:
What are we supposed to do with that?

[00:09:50] Speaker 03:
Yes, you can believe them.

[00:09:51] Speaker 03:
Yes, we defer to that, but we're not going to give it any weight.

[00:09:54] Speaker 03:
If not, why not?

[00:09:56] Speaker 00:
The testimony is not so clear.

[00:09:58] Speaker 00:
Mr. Robbins said that it's typical for an assistant director.

[00:10:01] Speaker 00:
Longshore testified that there is no protocol for an acting assistant director, which is what he was.

[00:10:08] Speaker 00:
He was only there for four and a half months.

[00:10:12] Speaker 00:
There is no documentary evidence supporting Ms.

[00:10:15] Speaker 00:
McGinn's removal from the chief of staff position.

[00:10:17] Speaker 02:
So looking in the aggregate, in Miller, for example, the court found that the... Can I ask you... I'm sorry, I'm interrupting you because I think that I see testimony that contradicts what you just said and I just want you to explain it to me.

[00:10:30] Speaker 02:
So this is on page A533.

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And the question is, would it be routine or would it be unusual to change chief of staff when an assistant director, a new assistant director comes in, whether in acting or permanent capacity?

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And the answer is, it's not uncommon.

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I think every manager that has a chief of staff would want their own chief of staff.

[00:10:53] Speaker 02:
Why isn't that enough where the AJ said that they believe this testimony?

[00:11:01] Speaker 02:
Why isn't that enough?

[00:11:02] Speaker 02:
Because it includes acting or permanent capacity.

[00:11:07] Speaker 00:
So Mr. Longshore, specific testimony is that there was no protocol for someone on a detail.

[00:11:13] Speaker 00:
So that testimony conflicts with Mr. Robin's testimony that it was typical for an assistant director to bring in their own chief of staff.

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But in Miller, this court, in reviewing credible testimony, found that the government could not meet its steep burden based on conclusory testimony unsupported by documentary evidence with no comparators.

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So even if this court finds that that testimony is credible and it was typical for an assistant director

[00:11:42] Speaker 00:
even an acting assistant director, to bring in their own chief of staff.

[00:11:46] Speaker 02:
But aren't these comparators in the sense that they're comparators because you've got multiple people saying that new directors generally select their own chief of staff.

[00:11:55] Speaker 02:
That would go to the comparator crong of whether someone who's a similarly situated non-mucilblora was treated the same.

[00:12:07] Speaker 00:
That's possible, but this court has recognized that bare testimony from the deciding officials is only minimum support for a personnel action, and the court must review the record in the aggregate.

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Here, the only documentary evidence suggesting that Mr. Longshore was planning to bring someone in

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is nothing, no emails, no memorandum.

[00:12:31] Speaker 03:
But didn't Miller say that there's no requirement that there be documentary evidence with their sufficient testimony?

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So you may call it conclusory, but the AJ didn't think it was conclusory.

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And on appeal here, I'm not sure where we are in determining whether or not it was too conclusory.

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So it required documentary evidence.

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I mean, Miller doesn't say documentary evidence is always required.

[00:12:56] Speaker 00:
That's correct.

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This court did not read in a corroboration requirement to testimony, but did clearly state that bare testimony in and of itself only provides minimal support for personnel actions, and the court must look to the other evidence of record.

[00:13:11] Speaker 04:
The chief of staff position is your least strong argument.

[00:13:16] Speaker 04:
There are several other points that you made.

[00:13:18] Speaker 04:
For example, they refused to give her the award that she had been recommended for.

[00:13:25] Speaker 04:
Let me ask you this.

[00:13:27] Speaker 04:
If I understand the record, her whistleblowing related to the operations at the LA office, is that correct?

[00:13:36] Speaker 00:
Her first set of disclosures, correct.

[00:13:38] Speaker 04:
Were any of the officials involved in that mismanagement which appeared from her audits

[00:13:49] Speaker 04:
involved in the decision-making later on with regard to her work or her job or anything else?

[00:13:57] Speaker 04:
Were any of those officials involved?

[00:14:00] Speaker 00:
Yes.

[00:14:00] Speaker 00:
Deputy Executive Associate Director Timothy Robbins.

[00:14:03] Speaker 00:
Even when Assistant Director Marlon Pinheiro came in and was the deciding official responsible for the later personnel actions, Mr. Robbins was in her chain of command and was the approving official on the Director's Award.

[00:14:19] Speaker 03:
OK, we're well into our rebuttal, so why don't, unless you want to use it all up, why don't you sit down and we'll hear the other side.

[00:14:41] Speaker 01:
May it please the court.

[00:14:43] Speaker 01:
The court should affirm the administrative judge's findings of independent causation because Ms.

[00:14:48] Speaker 01:
McGinn has not satisfied her burden on appeal of showing that those findings are unsupported by substantial evidence.

[00:14:55] Speaker 04:
Instead... Mr. Rosenberg, my problem is not with her burden.

[00:14:59] Speaker 04:
My problem is with yours.

[00:15:01] Speaker 04:
Yours was to establish by clear and convincing evidence that each one of these government actions was taken independently and without regard

[00:15:13] Speaker 04:
to her whistling Ms.

[00:15:15] Speaker 04:
McGinn's whistle-blowing activities, isn't that correct?

[00:15:18] Speaker 01:
Yes, Your Honor.

[00:15:19] Speaker 04:
And if you take each one of these individually, the chief of staff replacement, the failure to give her an award, the reduction in her periodic report levels and all of that, you can make a reasonable argument that

[00:15:43] Speaker 04:
Okay, but I'm not sure it was clear and convincing in all cases, but when you put that whole picture together, it's a rather puzzling picture.

[00:15:57] Speaker 04:
How were we to deal with the clear and convincing evidence measure when we look at the whole picture of how the government treated her after she had made those whistleblowing claims?

[00:16:13] Speaker 01:
Well, respectfully, Your Honor, Ms.

[00:16:16] Speaker 01:
McGinn has focused her complaints against two of the management officials, Mr. Robbins and Ms.

[00:16:22] Speaker 01:
Pinheiro.

[00:16:23] Speaker 01:
With a handful of exceptions, the majority of the personnel actions about which she has complained, including the change in her duties,

[00:16:30] Speaker 01:
were carried out by other management officials.

[00:16:33] Speaker 01:
And there was no evidence to show that Mr. Robbins or Ms.

[00:16:35] Speaker 01:
Pinheiro had a hand in the assignment of day-to-day activities or other facets of Ms.

[00:16:41] Speaker 01:
McGinn's duties.

[00:16:42] Speaker 04:
But Robbins was in the chain of command, wasn't he?

[00:16:45] Speaker 01:
Yes, Your Honor.

[00:16:46] Speaker 01:
But just because somebody's in the chain of command doesn't mean that there's evidence that they had a hand in the actions about which the employee is complaining.

[00:16:53] Speaker 01:
So for instance, in Carr, there was evidence that there was someone in the chain

[00:16:58] Speaker 01:
of command who had a motive of bias, whistleblower bias, but that they were too attenuated from the actions about which the employee was complaining for there to be a lack of clear and convincing evidence to support the findings in favor of the agency.

[00:17:12] Speaker 01:
So while in some instances it's enough to show that someone removed had bias, you still have to show that there's a nexus between the person who has the bias and the actions about which the employee is complaining.

[00:17:25] Speaker 01:
So the chief of staff position, for instance, Your Honor recognized, and I think you all have recounting of the testimony, that the decision was made by Mr. Longshore before he took over as acting chief of staff.

[00:17:38] Speaker 01:
There was testimony that Mr. Robbins had to approve the addition of a full-time equivalent to the office, but not that he had a hand in selecting who would serve in that role or that he was a catalyst behind the change of the chief of staff.

[00:17:50] Speaker 04:
Well, move on from the Chief of Staff position.

[00:17:53] Speaker 04:
That's the easiest one for you.

[00:17:57] Speaker 04:
Go ahead.

[00:17:57] Speaker 01:
I understand, Your Honor, but it's important to emphasize the change in Chief of Staff because the other changes in Ms.

[00:18:02] Speaker 01:
McGinn's duties flowed largely from that change in duties and change in position.

[00:18:07] Speaker 01:
So she went from being the Chief of Staff who had specific Chief of Staff duties under Assistant Director Hellwig, who then retired.

[00:18:15] Speaker 01:
Then you had four acting directors or acting assistant directors coming in over the course of a year's time.

[00:18:21] Speaker 01:
None of those people were familiar with Miss McGinn.

[00:18:23] Speaker 01:
Miss McGinn was no longer chief of staff.

[00:18:25] Speaker 01:
She was still in the front office.

[00:18:27] Speaker 01:
But those people did not have a hand, at least after... She was also a program manager.

[00:18:33] Speaker 04:
That's right, Your Honor.

[00:18:33] Speaker 04:
Talk about that a bit.

[00:18:35] Speaker 01:
What would your honor like to hear about it?

[00:18:36] Speaker 01:
She had as program manager her duties would have involved programmatic duties, but ICER operations was going under

[00:18:45] Speaker 01:
experiencing a large amount of tumult in consolidation with the closure of the Kansas City office.

[00:18:50] Speaker 01:
Multiple witnesses testified to the amount of strain that put on the agency organizationally, and so there were people who had to do things that they wouldn't normally be asked to do.

[00:18:59] Speaker 01:
Miss Begin was asked to do things like write position descriptions and do things more of a human resources nature because Katrina came viewed her as a subject matter expert on those things and didn't trust anyone else to do it, especially on short time.

[00:19:12] Speaker 01:
So there was a crunch

[00:19:15] Speaker 01:
to close the Kansas City office and replace contractors with government employees, and they were having a hard time getting all the hiring done in time.

[00:19:23] Speaker 01:
So this is a continuum of change in duties and assignments that all flow from her being replaced as chief of staff.

[00:19:32] Speaker 01:
What the record frankly shows is perhaps Ms.

[00:19:36] Speaker 01:
McGinn was not managed to the best of her abilities, but a failure to manage somebody well is not the same as whistleblower reprisal.

[00:19:44] Speaker 01:
So yes, we made a showing with respect to each of the facets or discrete facets of the change in her duties because that's the way Ms.

[00:19:52] Speaker 01:
McGinn framed her claim of change duties.

[00:19:54] Speaker 02:
Could you address more specifically

[00:19:56] Speaker 02:
the change in her duties with respect to audits.

[00:19:59] Speaker 02:
Was she prohibited from performing audits altogether, or was her role changed?

[00:20:04] Speaker 01:
So her testimony, and this is on pages 503 and 504 of the appendix, was that she was told to stand down from contacting the contracting officer's representatives.

[00:20:13] Speaker 01:
She has made arguments in her briefs here and in her papers before the administrative judge that she was told to stop auditing.

[00:20:19] Speaker 01:
That's not what her testimony was.

[00:20:21] Speaker 01:
Her testimony was that she was told to stop contacting the contracting officer's representatives.

[00:20:26] Speaker 01:
there were periods of time where she did not have auditing work.

[00:20:29] Speaker 01:
And consequently, the change in her duties amounts to a personnel action that is sufficient to amount to a prohibited personnel practice if it's motivated by whistleblower animus.

[00:20:39] Speaker 01:
So again,

[00:20:41] Speaker 01:
We're not disputing that there was a change in her duties, and we're not disputing that those change in duties happened in a relatively short period of time after she made protective disclosures.

[00:20:50] Speaker 01:
But the people who she says were motivated by whistleblower animus, Mr. Robbins and Ms.

[00:20:56] Speaker 01:
Pinheiro, were not the people who were assigning her work after she was replaced as chief of staff.

[00:21:01] Speaker 01:
She hasn't alleged, she hasn't argued in appeal, on appeal here, that Robin Baker, Katrina Cain,

[00:21:10] Speaker 02:
or even john longshore motivated by anti whistleblower animus and in fact each of those persons testified that they weren't they weren't upset with any of it they actually thought the audits were helpful for the agency is that correct?

[00:21:22] Speaker 01:
Mr. Longshore testified to that, Katrina Cain testified to that, Marlon Pinheiro testified to that all of the management officials and frankly Mr. Robbins did too and Ms.

[00:21:30] Speaker 01:
McGinn is saying

[00:21:32] Speaker 01:
there are alleged inconsistencies in their testimony that render their entire testimony implausible.

[00:21:38] Speaker 01:
And without those two management officials' testimony, you cannot find that any of the personal actions that were taken were anything but whistleblower retaliation.

[00:21:47] Speaker 01:
And in order to do that, the court has to jettison credible testimony from multiple witnesses, which this court is loathe to do.

[00:22:00] Speaker 01:
I do want to emphasize one thing.

[00:22:03] Speaker 01:
Ms.

[00:22:03] Speaker 01:
McGinn keeps referring to these changes in duties as though they are discrete claims, and they're not discrete claims.

[00:22:10] Speaker 01:
The way that she presented them in her briefs to the administrative judge and the way that she's presented them here is to refer to them as a single personnel action with various facets.

[00:22:19] Speaker 01:
If the Court looks at pages 59, 61, 70 in particular, and pages 614,

[00:22:26] Speaker 01:
Those are instances in the record where she framed her personnel action as a single personnel action with multiple facets, which is why it makes sense and why we have presented it to the court that this is a continuum of events that occurred, all flowing from her change over as chief of staff.

[00:22:44] Speaker 01:
She's also repeatedly referred to the changes in her work duties as reassignments.

[00:22:49] Speaker 01:
But it appears she's doing that in a colloquial sense because the way that she framed her claims to the Office of Special Counsel was to characterize those not as reassignments under a particular subsection of 2302A2A, but instead as a change in duties, which is Roman at 12.

[00:23:06] Speaker 01:
not the separate Romanette dealing with reassignments.

[00:23:09] Speaker 01:
So again, this is not a case like Miller where somebody experienced repeated significant changes in assignments over a span of several years, was told to sit on a couch with absolute no work to do for eight months, and where the finding of independent causation teetered on the testimony of a single agency witness with no corroboration of any kind.

[00:23:32] Speaker 04:
What do you understand is her position with the agency, Ms.

[00:23:36] Speaker 04:
McGinn's position with the agency at this point?

[00:23:40] Speaker 01:
I understand she's still employed as a program manager, and she still works for Ms.

[00:23:43] Speaker 01:
Pinheiro, or under Ms.

[00:23:45] Speaker 01:
Pinheiro.

[00:23:47] Speaker 01:
So these events occurred in 2013, 2014.

[00:23:51] Speaker 01:
It's now 2019, and she's still with the agency and still within Ms.

[00:23:54] Speaker 01:
Pinheiro's chain of command.

[00:23:57] Speaker 03:
Thank you.

[00:23:58] Speaker 01:
Thank you, Your Honor.

[00:24:03] Speaker 03:
We'll restore a couple minutes for rebuttal time.

[00:24:08] Speaker 00:
Although it is true that Ms.

[00:24:10] Speaker 00:
McGinn may have been assigned HR work, the government has provided no evidence explaining the pattern of removing Ms.

[00:24:17] Speaker 00:
McGinn's auditing duties following each disclosure or why Chris McManamee, the only other whistleblower in ICE air operations, was similarly removed from auditing after supporting Ms.

[00:24:29] Speaker 00:
McGinn's findings.

[00:24:31] Speaker 02:
The initial decision is... Where is the evidence that she was removed from auditing?

[00:24:40] Speaker 02:
or positions, some saying that her duties were just changed with respect to auditing, as opposed to entirely removed.

[00:24:48] Speaker 00:
Ms.

[00:24:49] Speaker 00:
McGinn testified that in October of 2013, she was told that she could no longer have direct contact with the contracting officer representatives because her audit findings were upsetting them.

[00:24:59] Speaker 00:
The following month, she was told to stand.

[00:25:02] Speaker 02:
She was allowed to continue to do audits.

[00:25:04] Speaker 02:
She wasn't allowed to contact the contractors.

[00:25:07] Speaker 00:
until the following month in November when she was told to cease auditing altogether.

[00:25:12] Speaker 00:
Ms.

[00:25:12] Speaker 00:
McGinn is still a program manager, but she has effectively been told to sit on the couch.

[00:25:18] Speaker 00:
She is no longer provided with raw data, and she is not performing any audits like she was before, and that was removed after she made these disclosures.

[00:25:29] Speaker 04:
Ms.

[00:25:29] Speaker 04:
Southey, you understand that we sit as a court of errors.

[00:25:33] Speaker 04:
We don't make them, we correct them.

[00:25:37] Speaker 04:
exactly in two sentences.

[00:25:39] Speaker 04:
What is it that the A.J.

[00:25:42] Speaker 04:
did wrong?

[00:25:44] Speaker 00:
As this court recently held in Smith v. General Services Administration, the initial decision must include an in-depth review and full discussion of the evidence that go to car factors two and three.

[00:25:56] Speaker 00:
Here we have none of that.

[00:25:59] Speaker 00:
Absent that discussion, this court is otherwise at a loss to determine whether substantial evidence supports those findings.

[00:26:07] Speaker 00:
For those reasons, the court should reverse and remand for appropriate corrective action.

[00:26:15] Speaker 02:
Can you give me a record site for the testimony that says that she was no longer allowed to audit?

[00:26:26] Speaker 00:
That record site is at Appendix 504.

[00:26:31] Speaker 00:
And at appendix 597, she talks about the only two audits that she has been asked to perform since in late 2015 and January 2017, in which three people had reviewed the audit before her.

[00:26:45] Speaker 00:
She was essentially rubber stamping someone else's work.

[00:26:48] Speaker 00:
She was not provided with raw data, and those audits are completely dissimilar from the work she was performing prior to her whistleblowing.

[00:26:58] Speaker 03:
Thank you.

[00:26:59] Speaker 03:
Thank both sides.

[00:27:00] Speaker 03:
And the case is sitting there.

[00:27:04] Speaker 03:
The next case for argument is 18-2313 in Carnacion Campos versus Wilkie.