that my client or or that there was a lot of trust during cross examination for the first time it was teased out that in fact he had export to communications with these n g s during the course of that communications diminished his ability to carry out the mission of the border patrol these ex parte communications were the first direct evidence in this case of any actual harm to the border patrol because of the effect on the public and that these comments would be have a negative attention embarrassment to the agency except about so why was sort of a subcategory of that surprise or prejudicial to your client anyway i mean he never responded to that he didn't contend that there was no impact the agency told them there was an impact and that was one of the reasons they were it taking the sun at most it's cumulative  actual harm to the agency from anything that my client did and the agency produced nothing nothing so from the from the onset of this case in our effort to defend against the republicans my client wein gaijin a vigorous defen among which was the claim that the agency cannot establish harm so when that agency in this proposal made in generalized claim that there was harm to the public we tried to address that through our information requests in terms of her asking them to produce any such evidence and then in the arbitration for the first time the arbitrator says i had specific conversations with n g o s that harmed the trust  that conduct misconduct you know hurts public confidence in the agency and it hurts the agency's ability to do its mission and it hurts the employees ability to function as a respected employee of the federal government is it required under the law that the deciding fishel have hard evidence this is that an official have to go out and do a survey of the local public know my understanding was that's not necessarily required it's permissible for the saudi officials to make those kinds of findings without that's supporting evidence per se you're not you're actually correct i mean there instance the p b s broadcast by itself agency can legitimately say that there was damage to the agency and its inferred because of the broadcast the problem we have is this their proposal made mention of this broadcast but in terms of the specification it listed things that accounted for nineteen seconds of a twenty five minute broadcast and to your point harm is only one issue harm goes for instance  the penalty and went to the decided official say he said very specifically that he factored you he factored these export communications and a lot of trust that they evidence reduced to zero or zero days mention your honor my contention from dave in europe i think it's important understand that in our sector we have great relations with with the more a troll and we always have our guys accept responsibility in this particular case from day a lawyer and my client have always felt that there should be no liability zero note no days you know if they want to give him a letter of caution which is not to swear under our system i'm not going to check to that but we felt that his his conduct at it don't look at it as evidence seemed misconduct by a border patrol agent who was called at his home on a list if you know of an unlisted number and been asked about what he believed to be private facebook postings i can't imagine any other person including the chief in this case acting in you know in a matter that was any more civil than my client you know and again this goes to the experts of communication was that was the statement about pounding senate really i mean i got the sense the important thing here was the was the actual facebook posting i mean if i think of that just a call from a television station in asking about border patrol activities and mr your client mr cories said go pound sand i'm not going to talk to you i'd be surprised if that would lead to discipline your you might be correct but the fact of the matter is through an arbitration the arbitrator sad that he considered the go pound sand comment and we separately have argued that that was inappropriate and a procedural due process violation because that was a statement we had noted you know in a written reply you know and unlike the qs motion which the agency used to defend against it being a procedural due process case we did not raise it again we had no this case in terms of the due process argument in reference to the ex parte communications if the if you look at the record it's crystal clear the chief said he factored builds into my decision about how to correct that behavior it's not a matter of whether or not he enhanced the penalty it's a matter of what degree he used those effects party communications to enhance the penalty but i guess i'm still a little unclear he was on notice that there were i mean the currently representing an agent who's are charged with murder for across the border shooting you know in nogales arizona they have numerous other issues before them you know that renders what my client did to be almost meaningless you know even in the broadcast itself this didn't even appear until the twentieth minute and it only lasted for one thousand seconds it was cumulative in terms of a look this is what else is age and it you know so in terms of in the end it comes down to having a fair opportunity to defend against the proposal and the evidence that the agency should have provided to us so i guess i'll ask a try one more time maybe and i'm not in for if he's on notice th agency is taking the sense and because the damage the relationship between the agency in the public and if he doesn't respond to that what more would he have arguably responded to if they had said and this  for my client i was addressing these very people myself talking about the process that border patrol agents go through when they engage and the use of deadly force i could have gone to these people and said the chief is saying that you guys are claiming there is a lot of trust and to that fact one month before when i was talking to any silberman the law school professor he didn't mention these facebook postings he didn't mention anything involving my client i would have had an opportunity to go to these people who i already had contacts with us to see whether or not there was any validity to that to the chief assertion that there was a lot of trust because that was their only direct evidence all of this is important and not only in terms of  the the validity of the charge but certainly to the penalty forty five days was outrageous in my opinion for them to even propose that the fact that they went to fifteen was recognising some problems in their case in my you know it in my opinion the reason they stayed at fifteen days is because of evidence like this you know where they can say look there's a real harm here you know in the proposal that we made you know we made allegations of generalized harm here's a real harm that's just to find the fifteen days and that goes to the remanded back or frankly i think that this court has enough to find that there's a substantial due process by lation sufficient to say that this case not get re mandated that this case get reversed for a new constitutionally sufficient proceeding which is that at issue here but isn't that the case i mean if the deciding official said he thought this was highly relevant we're talking about what he based his decision on so you may be right but if we've got testimony from the decide on the shelf that he lied  hermes misconduct and i'm moving on to something else which is that what if we thought that the allegations with regard to this phone call with mr epstein were not sufficient i mean with just inadequate and didn't justify any kind of proposed action what happens to your case how do we satisfy ourselves that if the agency had explosive we need light on the to that particular example it's unclear how any discourteous comments to the press would she ever asked you know if it was ever asked if this was if this ad if this conduct alone would you have done unlisted phone number he gets a call on he's on his way up to work he's arguably from i think this is understood and it's pretty courteous up front are trying to be responsible does the right thing which is says repeatedly you shouldn't be calling me should be calling my agency in the public affairs office i would assume that's precisely what the agency wants somebody to do but this guy would let it go and obviously had a gotcha question so shouldn't be discourteous to someone who calls you at your home and you are unlisted number and presses you over a matter is that what i'm having a hard time seeing what the standards are where are the the agency issue standards of another to some friend of his via an e mail attachment and that was the only that was the only exposure that i hadn't received but then was directing somehow i've been able to get and the picture to a third party in the third party willingly provides that picture to strip scene and then mr epstein as a function of working for p b s broadcast that comment that would be actually agency been impacted if there is just one hacked into his e mail account would we be here today one of those circumstances and i know there's been some comment in the bruce regarding hacking and even some say he don't know i've just assumed that my hypothetical is he sends the e mail to a friend the friend receives it doesn't do anything with that but somehow mr epstein hacked into his e mail account and in that way the communication came to light there is no legal basis that the government's their private e mail account or employee if they just don't have any expectation of privacy whenever they do any kind of communication with a single person no basis for and then he had reported that he'd heard this at an event and then the agency before that seems a little of a reach that shouldn't i think it would be a far tougher case than the one that was exhibits once page one seventy one where he says that he factor that right into his decision about how to correct it if they're arguing for it's not a matter of whether he did it it's a matter of degree you also i think should look at the proposal because you know that one of pages one forty two and one eighty in both cases he's telling you that he considered those statements including the go pound sand statement when he was going to what to do with hermes in reference to the first number claim i would i would invite the court to seriously consider that claim because i think rather than having this case be remained it for either a new constitutionally sufficient proceeding or for any some additional fact finding i think the first amendment do in this particular case i think it's important to note that these were off duty statements made in a private facebook setting this was not open to the public when he made these and the deciding official importantly the supreme court has said that these statements have to be considered in the context of the entire record they cannot be viewed in isolation just in terms of the posting itself the entire record here establishes that statement run you little bastards reference and you practice by the aliens are running away and sort of compliant agents commands to stop and sit down the testimony was clear that years ago agents used to be able to go out there and capture one hundred people by themselves and bring them in and successfully in two thousand and nine when hermes made this posting he was frustrated with the fact that clearly there had been a change in the field clearly these groups of aliens were now they call it quickly or making the election all run in differ directions in make it much harder for the honor but i think another fair inference is that any person whether he was a border patrol agent or a private citizen would be concerned with this tactic in the field i mean particularly today we have so much concern and worry about the border what is happening in the field in