court my name is glenn mangalam from san antonio texas and i'm representing bradley ward there are two things about this case that stick out for me in terms of our legal arguments one is the agency with the authority  power to frame the issues and make the allegations in support of mr ward's removal as itself it and did fail to support its allegations with substantial evidence or even with a preponderance of the evidence and the m s p be let them get away with it secondly we contend that the administrative judge acted arbitrarily and capriciously or not in accordance with the law by ignoring the evidence of a causal connection between mr ward's removal and his previous protected activity the administrative judge in fact found that there was quote undisputed evidence of record that establish that mr ward's remov could have been reprisal for engaging in the protected activity of filing a union grievance but the judge really rejected any notion that there was a causal connection on the basis of her finding that because mr ward in her opinion had engaged in the in the charge of misconduct that the air force could not have been motivated by a desire to retaliate against him i don't believe that that's what the law is i believe that that the law is that even if he had committed the charge of misconduct the agency could still have been motivated to remove him based on their intent or desire to take reprisal retaliation against him for  aging in a protected activity to make them use started by saying there was no evidence but that to support the charge but were there witnesses that testified in wasn't there a security police report and weren't there e mails and were there a significant pieces of evidence that were recovered from the disk drive that seems to me like there's there's a lot of evidence there was evidence judge i'm not disputing that there was evidence i'm just saying that the administrative judge found that the the agency proved by a preponderance of the evidence the allegations that were made against mr ward and they had very specific allegations of in support of their proposal for removal of mr ward and they failed to do so evidence that proved those specific allegations in particular the first part of the allegations he agreed that to through the at least the factual charges signed i mean the e mails for example he didn't dispute that those emails were sent by hand and received by him  of government property or records or information was that he copied and removed records which were in connection with the transaction of official public business in other words that he copied official government records and our contention is that the agency the air force never approved at the hearing and the image being that it didn't require them to prove that the hearing that the documents that he removed were actually official government records i thought that he had agreed that he had copied onto a flash drive the contents of his computer which was an official government computer containing official government says that not true if what he testified to at the hearing judge was that he had copied the contents of his personal computer onto a hard drive well a simple computer you say it was it was a government computer correct that was that was for his use not a laptop is what i meant that yes i'm sorry i  misunderstood but but what his contention was is that the documents which by the way were never offered into evidence themselves at the hearing so the best evidence of what he actually did copy and quote removed  was never offered into evidence but what he contended was removed onto the hook and placed onto the hard drive where his personal working copies of documents that he had been working with as the  to what was testified to judge was that there were there was contractor information and it wasn't specific about what contractor information meant what was whether that was the identity of the contractors or the details of the contracts what was also testified to was that there were documents containing social security numbers if there was any evidence to support the allegation that the air force made against mr ward it was he some of the documents did contain social security numbers but there's no indication in in the records or in the administrative judge's opinion that  the copying and removal of those records had any effect as was alleged on the transaction of official public business the second allegation that was made against mr ward was that he received and exchanged documents via e mail containing inappropriate material including language of a sexual nature which were not official or authorized the agency offered evidence that mr ward's sent some inappropriate e mail messages but did not offer any evidence that mr ward solicited received exchanged or even accessed the documents that were identified by the by the air force as containing the inappropriate material or the language of a sexual nature there were two dr key evidence was that those materials had been on his computer correct and they were  they were found on his computer and his position then as to how they got there with a bradley dot ward if i understand that was the idea he would be what would his the area of the case be as to how they got there just some buddy wandered into his office spirituous personal class pool i don't use his can i don't think that's what i was not counsel for mr ward at the hearing judge so i can't speak to what i mean this is a criminal case so you know he can't simply his theory of you didn't have a photo of me putting in the search for those materials and therefore you didn't prove that well that lets me see if i'm i'm i'm not disagreeing with the judge but what i'm saying is that the agency the air force has the power of the authority to frame the issues and the allegation that they intend to prove against the the person proposed for removal in this case they framed the issues a certain way but the evidence that they offered didn't address the issues as they were framed now the the the issue that was framed as i understand it was then i think this charge is that he had access point to graphic sites and they have evidence that his computer was used to access point to graphic sites and that's and having had somebody in the office while he was doing it if he was doing it i don't see how they can do much better than that well they just think that it's simply evidence that that computer which was devoted to his person he was which used to access the sites is not sufficient i take it i think you're talking about the third issue i believe right now disappointed graphic sites yes actually it's that's really they say he used his government issued laptop to access and download files from sexually explicit web site and they went further to allege that the information that he downloaded was pornographic right but they haven't admitted in the no supposed removal that almost all of the files that they were referee seeing as being sexual in nature or as pornographic graphic you're correct judge that they only had a lifting as i understand it of the actual sites that were accessed by this computer but because mr ward could not explain how those documents came to be on his computer the administrative judge in this case departed from the line shifted the burden of proof to mr ward to to say well if you can explain how these these documents came to be on your computer then i'm going to i'm going to find that you did in fact access these files in and i don't think that's what the air force proved i think the air force proved only that he could have accessed the sides not that he actually did in regard to the last issue of the retaliation reprisal allegation there was a lot of evidence in the record that what precipitated the sequence of events resulting in mr ward's removal was his filing of a union grievance on june the seventh the next day june eighth mr ward was counseled about his quote bad attitude and quote discourteous conduct less than a week later he was placed on administrative leave for no stated reason and was threatened with possible removal again for no stated reason on june the twentieth his administrate of leave was extended on july the third he was reassigned to another unit on august twenty two he was denied access to classified information and the right to an escort of the entry into restricted areas on august twenty second he was ordered to return all government facility keys in his possession and i was twenty nine the air force of security police was requested to investigate mr ward and  complaint which complete what was he complaining of blowing the whistle about the union grievance was in reference to the second level supervisor lieutenant colonel martin back for at least a year i believe this judge was how do we separate that from they are removing him because they're having problem with him as an employee well because i think various ways and yet his complaint is that they're having problems with me as a complot as an employee i don't think i don't think any of the alleged misconduct would ever come to the attention of the air force had they not decided that they needed to remove this person from the workplace because he was making allegations against the tenant colonel martino even though major moore the first line supervisor was the one who proposed the   issue raised on appeal is whether they met a definition of of being official records and there was no requirement that the agency prove that there was testimony from major more about the contents of the records that they related to  contract that mr ward was responsible for overseeing for on behalf of the air force and based upon the contents of those records as testified to by means or more the ministry judge concluded that they were government records that he did not have authorization to remove that certainly substantial evidence to support that charge with respect to the second charge receiving and exchanging material a sexually explicit nature again mr ward does not appear to  that he exchanged e mails of an inappropriate content with with someone and i think it's worth noting of course that mr ward had no expectation of privacy in his government computer so the questions of how the agency found these records found these e mails and found these files on his computer are largely irrelevant because mr ward had no expectation of privacy in what he was using his government issued laptop or although it appears on the record that after he removed the files from the computer the agency sent the computer to specialists who removed those to see if they could recover those government files and it was during the course of that investigation that the sexually explicit files and e mails were discovered finally with respect to the issue of retaliation the minister of judge did agree that mr ward had proven the first three elements of retaliation but had not shown any evidence that there was a genuine nexus between his protected activity and his proposed removal and to the extent that there was testimony that mr ward presented about his perception that it was retaliation the minister judge credit at the testimony of major moore and lieutenant colonel role both testify that he was removed for his misconduct and for no other reason i mean  issue that was discussed by opposing counsel that is the issue of causal connection if it is true that both literally and wrote that it was the deciding official major moore who was the opposing official stated that they did not consider mr ward's protected activity in determining to remove him but i would hazard to guess that no deciding official has ever said yes that's what i considered when i decided to remove breadboard i think that the sequence of events that preceded the proposal for the first proposal for removal which by the way was withdrawn because i believe that the agency knew that they could not prove that allegation establishes the causal connection and