arguments each which we believe mandate reversal of the merit system protection board decision that upheld the demotion of mr b when first no one argues including responde that a federal agency can lawfully disciplined employee more than once for the same misconduct globe illegally surely nobody argues as well that a u s attorney can't simply discretionary say you know we understand but we're not saying you're a bad person we're simply saying that we can't take the chance of putting you on the stand and having somebody cross exam testify because of what's called good leo implications that he had his prior misconduct had raised credibility courting with respect to that sort of guess what you characterize somewhat of a double jeopardy type argument where you say he was punished for the same thing twice isn't it true that the first time he was actually punished for his misconduct the second time it was simply a demotion that was that was required in response to  here is that in two thousand and eight when mystery was first confronted this misconduct the agency could have and should have gotten the input from the u s attorney's office they should have asked if there would attorney in fact he did respond to the agency was able to convince them that he was not guilty of lack of candor a qualification they kept him in his criminal investigator position the second time he had no ability to do that he said you can't talk to the u s attorney we don't know why they embassy has a clear case lloyd says you can't discipline employing more than once for the same misconduct now the question is whether misconduct did miscarry when engaging meeting and he didn't engage in any further misconduct with the u s attorney did two years later has to look at that you knew that's not what it's not based on misconduct that's the problem and based on his lackey qualification that's necessary for him to do the job if he were a doctor for example and he were his license was taken away by the state in which he was licensed to practice medicine the government could say well you don't have a license to practice medicine and more you can prove operate they're not a governing board do not like the you know the a m a or the bar association or anything like that they express their opinion we don't want to use him as a witness because of various complications that doesn't mean that he's not qualified to be a criminal investigator that means that in that they have that discretion not to use him in particular particular circumstances so it's not it's not like he is a pilot any loses his pilot pilot's license it's  and the the focus for me in looking at this case is the due process that was accorded the employees and i disagree i think that that if there's no misconduct then they can't discipline the employee you if you were telling me i know i'd go somewhere with you if you were telling me that the u s attorney was racist and they said you know we have a right we live in our races county and we have braces juries and we will use this guy because this race white hands real heartburn in the agency saying ok it's some point all i get we don't know where you're going but we don't know what the u s attorney right expect the city that would be you know such so he knows exactly what they relied on and he can he can respond to the person was authority to make a decision you know he could take a topic talking all with them or grab a cup of coffee both as a double punishment but also without according the employee any right to be taken by the action as punishment did they weren't intending to punish whoever they demoted him five steps he can barely he can barely feed his family of four now and i don't know if he weren't intending it was not intended as punishment or as it was and intended to deal with a lack of qualifications i think if you read the record the proposal letter out and and and you know with him but they are depriving him of his property interest in his job by demoting him first they proposed to fired him i guess that's not punishment either but it certainly is a significant consequence of days the i'm not sure that they really did because there are twelve positions or ministre to position their eleven just eleven positions administrative positions and they they didn't put him in those positions i mean i can discuss i don't want to discuss settlement did the best they could to try to help him because it wasn't about his conduct as your owners already know that it wasn't punishment it was as effective says it was caught so the agency can take certain actions for such cause to promote efficiency of the service and that's what done here because they did he could be a deportation officer they had to do something they couldn't keep paying him the deportation officer as your honour's noted the decision of the a usa about who they will and won't use is surely within the on security clearances and just substitute for security clearance prosecutorial discretion about when somebody can ignore a pair and they can all talk and they would all exactly correctly because the situation here is one that the prosecutor has the right to the duty to decide who they use who they presented in court which are and it's not something that the other agencies can challenge but the even if it's even if it's true that and that i couldn't  but there's no duty that they do that and the reason they didn't in this case is this case is very clear cut what exactly happened in two thousand and seven there was an investigation done into this situation with a refrigerator and the agency decided to cut  agency said we're only going to give you fourteen days for that we realize there might be dealer concerns but we're going to leave that the a you're not making us not use you so we're going go ahead keep using it and he got the work for two more years next kathy they didn't i mean there's nothing in the record that says that raising again we don't think you process the plight of the situations even if it did here there's no question he's got a notice of exactly what he had been charged with he knew what happened in two thousand and seven and he knew about the investigation he had a copy of the office of professional responsibility report of investigation and he had responded to the agency about that and he discussed that he knew the details that we had adequate notice and there's no doubt that he had an opportunity to meaningfully respond to meaningfully responded and it resulted in a demotion concerns aren't implicated the real question is whether seventy five thirteen is complied with and here they don't even alleged seventy five thirteen was applied but he got all the notice and process do under the statute and let me just respond to the question about whether the straight the was looking as he's willing to patients he was and he did send an e mail to his labor relations person saying we have to but for whatever reasons they didn't and mr wynn didn't commit any more misconduct there's only one fact and misconduct then the u s attorney came in and cited a new consequence a new concern about their one of misconduct under the bridge precedent in a number of cases they say that you can't discipline employees twice for the same misconduct that's the language they use so here even though there was no consequence that was cited by the