oh wait a minute yeah i just wanted to make sure they could it would be better for my argument if they actually are domains all right go ahead but thank you i may please the court this case comes to a little bit different than most of these cases because the issue in the case goes to the hospital work environment climate that we believe the judge made erred in his decision determining that a referral to opi are the office of professional responsibility was not tainted by discriminatory or charlie tory enemas and the reason the i'm not going to repeat what's in the briefs because it gets a little convoluted but the reality of the case is that what happened here was that mr jimenez facing a deadline submitted what he thought in a closed system that supported his claim that he was being retaliated against be given christmas duty for time he had already taken a vacation and he wanted to show the court that that was further evidence of a hostile work environment is facing that he was suffering  both denials petty and large there are some things that we agree about and the reason this case comes to this posture is a little different than i think that is even pitched in the brief the the da has a policy that any opiate referral stops that promotion for three years now whether that violates the merits of some pretty principles and for you we didn't argument below we accepted the premise because it's important for the second issue in the hostile work environment the agency is arguing that the two supervisors that referred my client to opie are following his submission in a closed system of evidence he believes supported his claim were unaware of the impact and didn't really discuss it in advance even though the evidence shows that the prior limitation on his promotion to it yesterday in had been vetted through those same supervisors so they were clearly aware that this referral what in fact get him limited from being promoted which is an adverse action  did the judge have substantial evidence to make the determination there was testimony in the record that these two gentlemen had tried that mr coleman had tried to promote mr mr mina's earlier you they tried to promote they supported his promotion before right even after he initiated well he supported it before but he was told that he couldn't promote them because there was a three year limitation on that promotion due to the firearm that was lost so he certainly knew  advance that there was the brown memorandum in this role because you had vetted it through herman welly these were the same two people he was told that my client with the guy testified and the age i watched him testify and looked him in the eye balls and the guy said i didn't know what discrimination doesn't come from just and that's a fact it is a fact finding but i think that the thing that that ignores is that the evidence in the case was that he did know and there were inconsistencies between his testimony and is on whether they knew the referral would impact his promotion mr coleman had physically been involved with mr whaley contemporaneously before the submission because wally had told him with respect rationale for why he wasn't promoted before because we originally challenged those promotions the explanation from the agency that was accepted by all parties and advanced by this agency was well you can't promote because you've got to wait three years because they both supported him for promotion beforehand they supported proposed efforts why would these gentlemen the supervisors lie about whether they knew this or not because the the way that this came down is there were two companion cases there was  i'm promoting mr jimenez at the time he knew he wasn't promoting mr menace because he knew that his open door for o would limit that promotion and in other words he knew that that by submitting this to all p r that would limit his promotion and we know that the gentlemen are not telling the truth so to speak because there are so many inconsistencies in their testimony as to how they made this referral and why they made this referral they argue to the court to the at that moment that his supervisors come in and they tell him his immediate supervisor say you can't mention you sara in your promotional requests you can't mention you sara in your submissions and we want you to strike that and the judge in the a r g in this case rules that that is because that was loyally language there was a necessary in other words the judge surmises that because i'm trying to give notice of you sara complaint i'm trying to say to my supervisors by the way i think this thing has been held up the thing you told me you were going to give me i believe that's being held up because i'm gates new sarah peel the distinction that the judge misses is the fundamental fact that shifted between the promotion for mr mr jimenez and his referral the opi are was the fact of the they got notice of his appeal and when he was in the midst of that appeal this referral i think the court needs to focus on here's how this happened the allegation is not from this judge as to why the referral was appropriate is not based on the knowledge of the people because let's assume for the fact they didn't know let's assume for the fact that neither one of these individuals knew that they were for a would limit my client from being promoted to some extent that's not particularly persuasive because the impact is more important the agency certainly no and the reason that i think this is significant is that the nature of this for for always advocated in advance by the the military should apply what is the basis for alleged basis for the basis i think in the right and the well this is two elements this is the basis of the underlying class complaint if the court would like me to get into that is that senior agents were being recalled to active duty for extended periods of time those agents were impacting already stressed operational units which were twenty to thirty percent under strength as mr coleman testified so our position in these claims was that what was going on that the senior agents by doing active duty for service service were considered to be double dipping from the government and disloyal to the agency because they should be focused on their duties as law enforcement officers in those that class appeal which i think is part of the record that was the allegation was that this was impairing the ability it was an it was imposing a liability on the agency because so many people in the southwest in phoenix and in san diego in those areas were reservists because there was a natural tendency from law enforcement officers also have been in the military so our position on this was that the reason there was the sand in this is because sax and assistance acts were graded on their production and this was impairing their production and and and their and their focus on just the narrow issue in this case the punishment that he received came from that submission in other words he medicine mission within a closed system the agency argues the reason that violated everything in the judge the judge didn't find that the reason that he accepted the premise of the of the referral was based upon the violation he said the reason it was significant is because the information the harm that could happen at hand up and up in the hands of criminals and that the end he did not address the issue that was clearly presented that these officials had discretion over the to prefer that or not so in other words if this was a technical violation ok if this was as we said it was at worst he submitted something he thought was helping him he did it on his own because he faced the deadline he did it in a way that that information was either not relevant particularly relevant or was unnecessary the government took the appropriate action with through that the question is why then is there referral to a p r that was a discretionary sizes felt that they were obligated but they weren't that's the point that the judge didn't address was that they were not obligate they were not there they said they were mandatorily required and the reason they said that is that would take out any question of their intent to motivation and their intent and motivation is pretty that's what they believe d maybe they weren't actually required but that's why they offered an explanation of why they did it but the reason they did it was submitted in their memorandum which is they said he violated national security was seeking personal gain and the personal gain that they said he was seeking was through the filing of the sower appeal and so my concern in reading this case is that the real rationale for this referral wasn't because it was some violation per se that there was some discretion on this in the real reason it was forwarded was to block his promotion and other words the they knew that the implication would be the blackest motion it did block his promotion or the referral of those  substantial evidence there to review record and that's why we say that when looking well there's a couple of things we do know we know that the judge found two of the four she in fact if not the so we don't have to argue about that he found that he wasn't protected status and there was a proximity and irrationality to them refer to the actions of the agency in a hostile work environment and to his military status so that really is decided that's not before you the issue is the other two factors and so when he said that he found a pointed out there were many and sister and and that's important because the issue i'm trying to get at here is is in the discrimination claims the focus is on the intentionality of decision making and doing the action now the government argues about the penalty and things like that the cats were out there we would kick in and well a bit backwards on that i think the thing that we're looking at our perspective is you have the judge give a reasonable look view of the evidence to support this claim it says when an employee is found to be under an active office of professional responsibility investigation active investigation includes those investigations still being investigated being written up under consideration by the board of professional conduct or deciding official action will be held in abeyance until the complete completion of the process so it has to be an active investigation not just a referral coleman testified to that that's the pendants two four three eight two four three nine testified well first he was asked and two two four three eight lines sixteen and when you submitted this memorandum forward did you know that that would limit mr menaces ability to promote to a thirteen answer no and then further down at the bottom of the page he started to explain sometimes they send it back to me and say no this is a management issue for you or they do or they decide to take the case there was no when i sent this up there was no active investigation i didn't know how it was going to play out it's their decision we've heard argument that they must have known because they were aware they must have known that it would delay the investigation because they were aware of this three year rule where it's two different rules one rule is you can't be promoted within three years of significant misconduct the other rule is you can't be promoted when there's an act active investigation just because you know about three were your rule doesn't mean you know about the other in the rules governing them require them to do so or they had no choice to do it because they were uncertain of the impact of what he had done and what is there are so steps that they they had to do it because the rules require them to do it  and will immediately report such information to his or her supervisor regardless of the illegal activities well it's certainly improper or they illegal this or any allegation they were illegal well i suppose i'm not sure what one three it's quoting from that in the middle there it says no employee shall one intentionally destroy mutilate remove falsify conceal alter or make an unauthorized copy of any government record for his or her own purposes and what he what he did  if i can direct the former to and it's for forty one wait a minute you think anybody who makes a photograph of any government records copy of a government run for their own purposes any and you think it's a must not i'm a report so you think anybody copy of any government records regardless of significance requires a reporting to ok you are if it's unauthorized and if it's for his or her own purpose according to the rules yes you police the photocopy machine i mean you know that seems like a ridiculous standard let's go back go for a second to five eighty two if i do you see what you're talking about as these infractions must be reported to the it and you said they actually had to report it and so we just walked through it and now i think we've come to the conclusion both of us that they did not actually have to four or five don't agree with that you're going to grace you don't they can or means you have two different options well mcguinty under this could have reported it to mr coleman or he could have reported it to be our mr coleman could have reported he didn't if he i don't know if he had another supervisor he could have reported it to supervisor if he had one or he could have reported over the our so it goes up the chain of command and eventually it gets so p r if everybody in the chain of command thinks that it is actually something that meets the standards since if somebody looks in the chain of command looks at it and says no that's not a violation then maybe they wouldn't have to report it higher wouldn't have to report it so p r but if everybody looks at it he says i think it's a violation it goes up the chain of command  sounds like you made this spoken or perhaps overstated your argument that you know why correct your position is that it has to be reported if necessarily directly to open are in the first instance right has to be reported it goes to the supervisor or to own p r but when the supervisor gets it then the supervisor makes the same decision either reported up to my c v in this case a supervisor could if i could have made the they can handle it if it's not a serious matter not it's not about lation if it were not a serious matter this seems to me like the quintessential definition of not a serious matter i don't think what mr jimenez did while it may technically be a violation of your early bet the problem he has form for me is that he's got to overcome a substantial evidence point of standard and even if i think  agents did not have to refer it and even if i think maybe they knew they didn't have to refer it i still don't know how i get to a reversal under a substantial evidence standard well because there is s advocating for mr and then as his promotion both before and after this mr mcguinty had been editing is meant to try to help him get promoted  not like use editing work product that was part of in the supervisory chain something he would have well i think it goes through the supervisory chain he did have an obligation to give an obligation to edit it i don't i questions not hostile questions you're looking for the hidden you know something and they're not there they're friendly questions so we didn't have any obligation to do this to edit this guy's memo so he was he was helping him relied on this  the inspector at all p r to advocate for the promotion this is that appendix twenty four eleven and twenty four twelve twenty four eleven this is mr coleman testify you know he said he doesn't remember the every word of the conversation but he said he called chuck meaning the stor wally at oakey oncet he truck got this guy he's earned his thirteenth he's came back disapproved checking to see the status essential of what the details are on this thing and then and then a page twenty four twelve doesn't sound like someone is trying to or right at twenty four twelve he's he said so and so did i vehemently argue and jump up and down with truck no but i certainly said hey this kid is a good agent and he's done a good job and chuck said i realize that but the three year is the three year rule for these last guns essential that's a disciplinary proceeding for the last guy right that's that's not the right disclosure of the unattractive copy of stuff right so we've got an answer is two things separate my record so we've got mr coleman who previously was not only moving it through the chain of command but advocating and maybe to a small degree complaining to mr whaley when the three your role delayed at the first time and that's all the substantial evidence to support the conclusion that these two supervisors didn't have it out for mystery minutes that's not why they sent this for all they sent it because they thought they had to now maybe they technically didn't have to but even you thought they had to so it didn't be unreasonable for them to think they had  our position is i think you've locked on it which is why they support him after you file the first thirteen no there was actually a change in the in the regulations where you were supposed to automatically get a promotion if they wanted didn't they inquire why he didn't and he didn't because of the three year of the gun last night but then they say why didn't he get it i don't believe that occurred after he filed this appeal i think that occurred before and they were told that he can reapply in november and he needed to re s while that while that case is for is it correct the government's i mean certainly looks to me like page one seventy two expressly only an active investigation you know because he was already entitled if that was the case he was already entitle to his promotion i mean if  a wouldn't have blocked him he was already entitle to his promotion before all p r actively looked into this you argue that maybe that would be a good argument to make if that will really is that only an open our investigation not a referral block motion did you argued that this case should be taken as a whole and in all candor i'm not certain that came up in that particular context i just want to finish with returning to i think the central issue is let us look at what the judge said was his rationale for finding substantial evidence and that was that there were no internally there was no inconsistency some testimony well there was that there was no opportunity for them to use discretion well there was that there was no underlying motivation and i just to finish with please look at the actual referral because you've you've you've touched on it your honor in order for them to bolster that this needed to be referred to opie are they took what was a de minimus disclosure and they trumpeted it into a violation for personal gain and a violation of national security and they did that knowing that they were witnesses in this case i think given that and given that there were other attacks on him for filing the usera repeal there was