violated by the agency and did that violation constitute harmful air as a secondary issue is whether the mystery of judge erred in not reconvening the hearing in order to give bradley an opportunity to question the deciding official about his use of what we call exhibit twenty one which was mr billy's criminal history you can see that earlier proceedings say again that you had you were we are a criminal history we were aware that the criminal history was an exhibit to the base document which was the report of investigation by the security forces but that i saw that a few weeks before the hearing and at the pre conference or preparing conference i raised the issue about why it had been amid from the agenc responses both initially during the removal process as well as during the appeal process they had never produced that although in the statement they said that they produced it during discovery and looking back at their discovery responses were merely it has been included as a part of the agency response they never responded with that particular document as a part of the report of investigation or a jew knew it had been one for the agency he was part of the agency file you could have asked about you could have asked whether deciding official relied on the door saw right during the hearing because we were aware of it we could have asked about it but that's like asking about the mother report what was in it without knowing what was in it question somebody about it without knowing what was in it we did not know what his criminal history was he did not know what it was you could have been anything to do with us excuse me i thought we had a copy of this at the time here no we did not that's the problem we did not have a copy but we asked about it before the hearing the agency was supposed to bring it to the hearing produce for the board here that you have given a copy of the discovery the government is not correct mr begley provided me all the discovery he had received through during the read removal process it did not provide it although it says it provided it during the discovery process it did not they did not provide that to the appellant the st time he saw it and that's in his declaration which can be found appendix forty five dollars to forty six dollars he says the st time he saw it was in the post hearing submissions the agency was in order when you look to whether or not that that criminal history that you were referring to whether it was material to alleged threats that he made toward his supervisor although the word threat is never used within the charge or the specifications which at which lower the burden of proof for the agency but during the hearing became very apparent that persons who were there the supervisor they felt threatened they perceived mr bradley as a threat now the reason that this exhibit this criminal history exhibit is material is because it shows to cause bodily injury it shows that he has a conviction his record for burglary if a deciding official is looking at a criminal history of an employee who has been alleged to have done certain things such as threatening others and you know threatening them with bodily harm and if he has a criminal history of assault to cause bodily injury so i would i would agree that the that the criminal history is pretty good issue to your client but the question is whether it was actually relied on or not by the exciting officials in the notion proposed removal and that attached right yes ok there's no reference there to any criminal history is there are no there's no there's no reference to that specific criminal history that specific exhibit the references to the report of investigation the report of investigation was the basis of the removal action because it provided all the witness statements it provided all the information that the management officials primarily relied upon in order to make their decision unlike ward and young where the management official or soon the deciding fish will receive ex parte communications after the employee had responded to the no supposed removal in this situation that document that we were complaining of was taken out of the base document that was used for the removal process and another document submitted into its place when it was given to mr redlich to respond to we were where you say that in the pre hearing conference is when we asked about that document not understand by me asking you when after the hearing was over would he say that they finally submitted my question my question is where did you say we didn't have this document during the hearing we would like to have the hearing be open so we can question about i believe that that was a verbal request of the ministry of judge it was not a motion for real things where where do we find a reference to that where we find a description that you did that i don't believe is part of this record in the cases that have been before the court before they have not contemplated the issue that's here before us today that a document has actually been removed from the based auction used for removal i see i mean to my please the court the air force did not as petitioner alleges try to hide exhibit twenty one the record of investigation d r y from the petitioner the government's government did not submit exhibit twenty one to the board in for mr basically that he was entitled to the government's evidence and it told him who to contact to do so he did that and in the rebuttal response mr basely refers to the report there's no evidence that mr bas not have access to the full report when he responded to the notice of proposed removal there is also no evidence that the air force kept the exhibit from petitioner during his appeal as we've just discussed there was the  agency counsel has in the records has his statement that a complete and reject a copy of the report of investigation including exhibit twenty one dollars was provided to petitioner and this would have been petitioners counsel at the time process claim in his preparing submission however five days later at the pre hearing conference he asked about the missing exhibit so he had that information he could have raised this issue in his pre hearing submission and then the government would have had a chance to put on evidence to refute it he raised it at the pre hearing conference it was explained to him that because it was not material to his appeal it was not relied upon for the proposal of removal or for the decision to remove and it was considered it could on page twenty three i'm sorry but the  brief but this is to show the petitioner was aware at this time at the pre hearing of why exhibit twenty one dollars was not included in this submissions to the board and should have been aware that it was that's correct this doesn't talk about the prior submission during discovery that's referenced in the agency's post hearing submission a declaration of the declaration ye petitioner therefore could have asked the decided fishel at the hearing whether exhibit twenty one played a part in his consideration the administrators judge in her opinion says that the petitioner didn't ask for exhibit twenty one until the hearing  and then did not and then the petitioner concedes that he did not ask the deciding official questions about the exhibit and about the possible impact on the decision to remove petitioner administrate of judge ruled in her decision that the deciding official credibly testified that he would have removed petitioner based on the mayor leavened incident alone and as i mentioned before it's incumbent on mr bailey to raise his due process argument timely which it was only raised in a post hearing submission and and and that was not in a timely fashion the board found there there was no record evidence that appellant's due process certainly not clear that having or by keeping it out of the board record because of the possible prejudicial effect the air force admits that it could be prejudicial the air force provided the surprised at the the full report i said so what is the evidence that he was provided with what in the in the notice of proposed removal he was informed that he's entitled to see the government's evidence and then was told who to contact to  fifteen that the record is and i'm specifically on page sixteen about halfway through the paragraph for it says mr ably continue discussing the report on how multiple members feel threatened and yet have also worked with mr bailey so mr davis referring to the report he received the report in order for him to respond to the notice of those removal and there's twenty eight or thirty thank you on a paragraph seven on appendix thirty you're entitle to review the material on which this notice is based on which was relied on to support the reasons for this proposed action or provide these documents official relied on which might not have been the criminal history well it's it's not clear what is relied upon this could be everything and relied on their not clear right if yes your honor that this is everything that was considered the whole case with the due process claim coming up after the hearing the government wasn't able to put on evidence of of a claim that wasn't being made the government doesn't have the burden to dispute due process going that's not be here and there's no there it's clear in the record that mr baillie was provided materials and there's no evidence that he wasn't provided exhibit twenty one dollars the reasoning that the air force used not to provide it to the order submissions didn't apply at this time because he didn't know what the deciding official was going to rely on and it's a tricky word to use in this context but the the deciding official made clear that he reviewed the case file and mr bailey was entire  intitled and given access to that case file the deciding at this will in fact the the notice of post remove all points to the may th incident as being the charge and what's being relied upon the notice of additional information by the deciding official actually hold out more information from the case file to say i'm also going to consider other outbursts other than the male love and outburst that occurred in is there a what we often see i thinking of douglas factor checklist document absolutely your honor it's in the the agency's submission to pre hearing submission to the removal process the discovery process in the appeal process the agency produced to him they are a live report an investigation that did not include his criminal history but they had it at some point was because that's the st time we saw that particular document even though he had we had talked about it beforehand we requested it during the hearing and the judge finally made them produce it afterwards that was  and that's when he finally looked at what was being alleged about him the burglary the traffic violations and the assault charge the st time the been able to respond to those particular charges he didn't know that was in his criminal history and if in this case they have a copy of it during the removal process that they're proposing officially have a copy of it that deciding if they had a copy of it and they relied upon it in any way any manner then that was harmful air and that's what's not being addressed here is why did they take it out of the removal packet he did not have a meaningful opportunity to respond to this criminal history possibly being considered by the deciding officials that's not that's that's something that's not being answered here is why they did that when they did it and who ordered it all fair enough but the problem and i and i'm sorry that the record does not reflect that we did request that the judge would reopen the hearings that we could examine the deciding official and i believe that was done virtually not in writing issue what we did raise the issue during this period and as i said i thought we'd raised it and these are virtually i don't know we did not follow a motion to reopen the hearing but i believe we had ra verbal e it was during this period of time when they produced a document to us and we responded with a declaration stating that we we believe that there was a due process violation for mr bradley so then this document here th suppose that in fact that the request was made to her and she denied it and that's my point your honor is that we did make that kind of a request and she did not grant record was closed she was not going take any further action we believe that there was an abuse of discretion because she didn't follow the law if there's an obvious due process violation i believe this is the ministry of judges obligation to reopening the hearing or at least take some action on on the side of the person whose rights are being violated  even the judge says at the hearing the accounts represented request of the agency some of the copy of the criminal history docket for the record so i would think that a transcript of the hearing will show that it was he notes that on page two of the appendix