it please deport my name is robert t so representing the petitioner tina wilson the crux of this case is a failure to communicate whenever an agency is going to take adverse action against an employee the agency has to communicate three things to the employee first the agency has to communicate the conduct misconduct that the agency believes that the employee committed and that's usually done that's done in the charges second the agency has to communicate the evidence that it will rely upon to prove the misconduct and that is the specifications the specific facts which support feelings of this coming on then a certain thing is that the agency must communicate to the employees any information that the agency intend there was no due process because she didn't receive a notice of disclosure to her ex husband but the board and the agency argue that firstly they would have reached there was testimony and refuted testimony that the deciding  she was denied constitutional due process of moralist error is is is a harm to the other side of the harmful error argument but not the due process because if there is a denial of due process then the irrespective of whether or not the operation of your material was considered for a penalty the penalty was insane even absent your view is that there's that is not sufficient to multiple allegations of misconduct in sustained allegations of misconduct and so therefore if the if the due process station was obviated by the fact that there were other sustained issues of reversed and remanded for a correct procedure and at that point the agency has a choice to do what they should have done to begin well there either told us that if the other alternative procedure when he had not considered court has stated act on the board has stated that if the only issue is was it would the agency have done that anyway then a lot of these cases would not come to this point because the agenc information to my ex husband or anyone else and when she said and i did not do this for personal gain now the board took this to be a denial of an allegation well it was not a denial because  she felt very much that they were related she would explain in great detail why she believed they were rate related this was part of that explanation this would be in effect like  nothing in the deciding officials testimony or in his decision has anything to do with credibility regarding whether she communicated any information to her ex husband that issue never came tex information to him opie are conducting an extensive investigation two thousand one hundred eight pages and five volumes they never took a statement from him but they interviewed him three challengers and an o un fairness was that there was no link between what she did and what the deciding official did he did not rely on that you have to look at the deciding official she had no clue as to his thought process the fact that she said i didn't conveying information or share information she had no way of knowing what he was thinking and to raise the issue with she didn't raise it was a deciding official she did not have a very reasonable opportunity to rebut any specific allegations because the agency never made any specific allegations if agency had done where it should have done if they exist citing official really thought this is important they should have rescinded the notice of adverse action reissued it but isn't this charge in here and put in specifications saying based on this we believe you did this she then would have answered that and great detail just the way she answered everything else this statement that she made in the air was an offer a cough statement anyone else that's not a logical assumption it's a possibility but it is not a necessity sharing information is a much more serious a trench than making tex agency doesn't have to charge anything the agency doesn't have to prove anything but the agency in effect gets the benefit of a conviction without having had to put on any case without any notice to the employees now much was of the fact that she gave a detailed written response which she did and had she been charged with communicating this information to her ex husband or anyone else she would have given a detail written response to that but she wasn't charged with court miss wilson contends that just because she wasn't officially charged with disclosing tax that a due process violation has occurred we had meant that the agency did not include a stated aggravating factor essence of the misuse of touch charge was the reason why miss wilson was misusing text here the overwhelming evidence demonstrated that this woman with misusing text because she may be suspects querrey at the request of her ex husband and i agree with your honor in the sense that she was on note she the way i read the course of session was that she should she gave herself notice based on the overwhelming evidence in the record demonstrating that she had run the tech square is that the quest of her ex husband the natural conclusion to be drawn from the deciding official would be if she made it made the searches at their quest of her ex husband that she would be sharing that from a sion and so mrs wilson  run a particular manner here as the administrative judge found the deciding official unequivocal he testified that he would have removed miss wilson based upon the lack of the substantiated lack of candor charge and the failure to cooperate charges alone because those were the more serious charges and more importantly those charges had nothing to do with the information relied upon by the deciding official that she didn't disclose tech information with her ex husband so the third stone factor demonstrates that she was presented all the information that was relied upon by that fighting official she gave her side of the story not once but twice that with thirty one page written response and an hour and a half long or a response she  addressed the overwhelming evidence demonstrating that she had run tax crazy at their customer x husband and she said no i didn't i did these these are legitimate techs cory's i ran i did it for investigative purposes and the deciding officials and the administrative judge both whether the agency that that was a more solid charge but the fact that the deciding official considered that the natural conclusion to be drawn from the fact that she had ran improper searches on behalf of her ex husband is not a due process violation information is new and sherrill the first stone factor addresses whether the information at issue with new or whether it's cumulative and the administrative judge here found that information at issue or the information at issue was contained are the deciding official in the deciding special testified that he relied on the investigative file in making a determination that he didn't find credible her explanation regarding her texas inquiries were done for investigative purposes right it's whether she didn't disclose that information with her ex husband i think and if the factual circumstances of this case goes part and parcel with with that nature of the charge because either she did or did not run the searches at the request or on behalf of her ex husband so that that was the agency side of the story her side of the story was no i did it for investigative purposes well the agency determined and it was affirmed by the board that she improperly ran the search is that their quest for ex husband and a natural conclusion to be drawn is that if she had run searches for her i didn't want to with the natural conclusion would ordinarily be if that is in fact the natural  charge with i don't know why agency then charge her with that but i don't think it's an improper for the the deciding official to have considered that that that as an aggravating factor as part of the w material information cases that i research is that only other cases the information they're talking about is some kind of hard real information documentation of prior discipline conversation with other people there's no question that that something occurred problem in this case as the new information which the speculation of the deciding official he had an x party communication with himself in effect because he born i agree and i say it i say x party communication because of how the analysis has developed in the previous cases this is different the real question in this case is if it's a denial of due process for deciding officials to use x party information from other sources is it not even worse if it's just something that the deciding official made up in his head because he know even though she got these tips from her ex husband she was using them it was more she had more of a personal interest in it than a law enforcement interest that was a credibility issue it was never raised in the investigation  the interviews with him he said twice and there are you know that he asked her what did she find and she said i can't tell you that don't go there and he never alleges that and they never investigated or for that  was that she did it for private gain and the opi are that a forty three page report on the entire investigation and not once in there is there any mention of her communicating information to right now how is that different from there and there's a there's a rule about it as a rule about forty admissions and this was not an admission and this is this was not treated as an issue this was aside it was and on this was not something where there was anything joining of the mines or a focus she made this as an empty emphatic statement part of her statement that she believed laundering or that type of thing now let's suppose they had charged her with sharing texan information with her ex husband i think from that charge does not necessarily implicate sharing information with an outside source the deciding official recognize that because he said this is much more serious in my mind than just making improper then that issue was never joining she didn't make a denial because there was nothing to deny in the in the cases where there have been new x party communications and information the question has been raised as whether the employee knew of the improper communications and whether has the employee had a chance to respond to it and in the cases where it's been held that there was no due process violation the deciding the fischel gave the employee copies of the communications and copies of the information and kept the case open so that they could respond and i've had that happen in cases where there'd be a subsequent communication and the deciding official would say well i found out afterwards thus and so here's here's what it's based on