he should have done that knowing that they should of based on his own decision in america he did discuss it in his marriage decision because he never said anything about her being innocent all he said was in conclusion the preponderance of the evidence does not support the agency's position and i never said that in fact the infers actually he says that she miss that she was in violation of a direct order not to get back on the computer he had in it he says she admitted to that so she was clearly in the wrong and least some part of it but his conclusion is there is no preponderance of the evidence because it was a he said she said kind of situation that's quite different from being substantially innocent and so he doesn't have to say what she substantially innocent because he didn't the merge decision er thirty days numbers of ten thousand dollars and then when we went to hearing today hearing the arbitrator found that none of the chargers were sustained in fact on receipt rescinded the reprimand  instance of where she would have been if you've been party and i think also in the interest of justice not entitled to attorneys because that's not what happened here in this regard just the arbitrator found on all four counts that or major charges or of the more important and greater part of the original charts and i think that's what happens is which we have two major charges we have alleged misconduct towards a member of the public we had a failure to follow directives we had a says when you evaluating allen factor two because what we're talking about any such determination should be based on the record established before the board on the merits of the agency's action without holding separate he opinion on this question in making such a determination of the presiding vishal should examine the degree vaults employees are and the existence of any reasonable basis for the agency's actions and so there's other cases like disciplinary proceedings and i don't see anything in the arbitrator's decision that's really telling on the reveal in court that what happens here to this guzman rises to that level information and evidence was written testimony from the security guards who was witness and present at the time that miss was was there and that this so called location occurred we had a coworker testimony supported by written statements  no real reason this to why security in testimony secured our testimony and coworker testimony was incredible and i think that if it is an issue in addition to that we have the so called violation of the policy we had two conflicting policies that the agency was fully aware existed at the time that they brought these charges against ms to smile and it dealt with the way in which you file claims one with this so called unofficial policy that was the policy eleven pages of detail position by the government he has three pages of detail positions by the union and he then has four  unfair so you can simply take the fifth if you wanted let's assume he had said the proprietor instead of the evidence supports the agency's position and penalty and you are up here trying to undo that result would you have a tough problem he came down fortunately on your clients have i guess the unions whatever so it's i'm struggling with why this case should be such an exception come down on the risk of being side eventually as a matter of discretion or the other aspects doesn't sway a bit more heavily on the competence of the representation thompson vs the merit system is protection board and there the court called it regardless of whether an employer stated that regardless of whether an employee prevails in all or some of the contest the charges the closeness of the evidence is a factor to be considered in determining whether the employee's  innocent i don't really think that the interest of justice weighs on the representation it is it's designed to ascertain based on the record and this is from nasa versus the department of defense based on the record established before the board whether well it's it is without faults that has a substantial innocence but i believe this is all going to whether it's in the interest of justice not but not based upon the quality of representation obtained in this case  counsel is alleged that the arbitrator did not address accurately address the allen factors and that was a point to the court to a page two of the appendix at the petitioners original brief there the arbitrator does state that he security employee certainly in looking at the way you were supposed to follow up a claim the evidence presented before the arbitrator at best suggested this was an informal guideline that was followed by that was propounded by a technical expert and huling herself had not followed it in some of the cases that is assessed at page i believe supplemental appendix page thirty also and that ties into the remaining three charges certainly there was evidence presented in our supplemental appendix page three through four that there were some problems with the timing of her contention of when she in fact lived out the case likewise miscues annealing has contended that the agency failed to act in good faith or acted in bad faith which is a different allen factor here there is no evidence that the agency brought this action to harass or exert improper pressure upon his couzin huling or or committed any kind of gross been told well she did know that he was a technical expert i think she knew that he wasn't either her first or second line supervisor i think most employees know when their supervisor it and she didn't even follow the three six nine policy in this case she met with me as well as an april seventeenth and april fourteenth she didn't send anything on april seventeenth this is the last ted sent something on the twenty second and then this goodman huling followed up on the twenty fifth asking for additional information and then denied the claim on the twenty ninth the just so it's not three days later and didn't follow any of the timelines that she had suggested that she was supposed to follow likewise evidence that was presented before that arbitrator suggested that she had not followed these guidelines in other cases and i just wanna make a couple of points here i think that's when i spoke earlier about possibly the arbitrariness the partition like that that's the one point that i wanted to mention was that although archer concluded or determined that