factual issues but they're all part of how you rebut a positive drug test fight so the real question then is from the court today is is there any way to possibly rebut a positive drug test and if so how much does it take  here just like in for terry we've given every single solitary way that he could possibly show other than going back in time and taking the drugs i sampled i believe we still don't know what happened to it because malone who was the  collector doesn't recall that so true there is no smoking gun here in terms of somebody saw him i switched the samples out that doesn't exist but other than that beyond that is that what it takes the truth that a drug test should have been did did make a finding for example on the question of whether mr griggs rude was observed making giving the sample mr grams or as i recall said he wasn't observed whereas versus not let me ask you one question counsel your the main focus of your brief is on the challenge to the collection of the sample look that's the main focus of the i consider main focus is the fact that they didn't analyze them before today because well give them plenty of evidence the sample that's the whole sample is shipped lesser but the questions is let's assume for the example this is just hypothetically let's assume one were to conclude that the decision of the board which is what we have in this case with respect to the collection of the sample and so forth is all in order and we reject all of you are be convinced except we were to conclude that there was a problem with the issue of whether the deciding official mr golden knew he could mitigate the penalty what would be the remedy there well no i think what we have to do is  else would stand in the case except one would be saying mr golden didn't realize he could mitigate the penalty correct ok so wouldn't the result at that point be to send it back to the agency for a determination on that issue and other words to the deciding official isn't that logically what you would do right but exactly that's exactly true and i would go back to the you know p r ok it's now my question was it a civil if if we would decide that everything was fine in this case except the fact that the deciding official mr gold who was also the proposing official didn't realize th is is based on that colloquy that's quoted from the deposition he didn't know he could mitigate the penalty correct ok now that's separate from this last chance agreement i mean mr graeme's would chose not to is mr golden if he is still in the agency deciding whether or not he wants to mitigate the penalty the moment he's in the situation where mr grams are said i don't want to go through the last chance process and mr golden would then have to decide ok i now have to decide if i want to mitigate with that be the logical situation it is long as we did have a last chance of going to the table and in terms of  is isn't that the only thing that would be up for decision namely is there going to be mitigation there might not be mitigation or there might be some kind of mitigation or there might be a last chance agreement correct your own if you moment please the court the result in this case is control of this court's decision in frank vs the department of transportation where the port held that a urine specimen is chain of custody must be strong enough ok in the forte case there was supporting expert testimony of the hair follicle test to show that it had some relevance to the earlier urine specimen that was collected and tested positive the issue in both cases is the urine specimen that is collected and is that a proper positive result in the forte case there's a hair follicle test taken possibly thirty days later and there is a supporting expert testimony that that has relevance to the earlier urine specimen which is then tested for drugs in this case in contrast all that was done is that the piece of paper with the hair follicle test was part of the record before the poured there is no supporting testimony that that help care for alcohol test has any relevance to the urine specimen which in this case there's a sixty's approximately a sixty day span between the urine specimen being collected on march thirtieth and then the hair follicle test and no supporting is one case there was some medical examiner that that said that the hair follicle test is probably of and in the other and this case there was no such testimony that and so that's thing that's enough no there's enormous differences between the two cases if you read the decision for take a case in the forte case the administrative judge is not crediting the testimony of between the two the two records and each case really has to be judged on the record that comes to the board in this case there is ample evidence in the record that shows that the chain of custody was intact i could just go through that real briefly here well you don't have to go through the whole thing but what about the curiosity of the time entries for the collection of the sample where mr grim's route copy doesn't have that time entered on his copy him but the time entry of filled out and all the other copies that's correct it was examine that point the evidence showed that at the the time the time is written on these custody and control forms at that time a lot of things are happening at the same copy the six fifteen it's quite possible because of what's going on that he doesn't see the collector write it on the form the forms have been separated to to make it clear there's five forms the one on the bottom is the donor to when he's doing that he doesn't it's quite possible he doesn't see the collector right on the first copy the six fifteen alternatively it could have been the judge found it could have been as what's pointed out is at that stage of the process the urine specimen is absolutely secure through the whole process of the chain of custody the specimen is po vials which are kept and then they are sealed with a tamper evident take that goes over the cover of the vial of the vile and on that tape a unique identification that care that unique identification number is also on the custody and control for and once that tape goes over the vile it's absolutely secure there's uniform expert testimony in the record here in findings by the judge that these this tape is tamper evident and that it had never been tampered with is with that  dated by the collector and this case the testimony was that it had his initials it is probably dated and this is the testimony from the laboratory who receives that who sees who checks the the vile many arrive at the laboratory that there has been no tampering with the vial so all this happens before the mix up with not getting the six fifteen on all of the copies of the custody and control for what about the issue of whether mr golden knew that he could mitigate the penalty just on that question mr golden testified before the administrative judge that he did have discretion and then he was cross examined and showed his deposition testimony which could be read to indicate that he didn't think he really had discretion that he had to  go i would probably be the plain language reading of the deposition right well i think you could read it either way he's saying that he thinks it's the secretary's decision but what he supposed saying also in this deposition is he didn't know whether the question referred to the i mean does the government what what were the options at that point aside from removal at the time of the proposal just so i make sure i understand your question as to the timing at the time of the proposal he considers the table the penalties he considers all of the evidence that comes to him and based on everything that he had in front of them including all of the guidelines of the evidence what are what is the table of penalties save for you know a positive drug test that for someone in a position like him there is a safety related position that normally it is removal it just says removal yes but then also you can offer as it was done in this case you can offer the possibility of a rehabilitation plan but that is the employee's choice and that is what exactly what mr golden did at the time of the proposal is there anything like suspension or anything like no not for someone in his position now it also says in the in the table that that you do have discretion so perhaps depending upon the evidence there might be another case of someone who was someone if there was evidence that i know it's hard to imagine but if somebody was somehow drugged and they talk or ingested something that had the cocaine and they ended up getting it that way if that with the facts of the case that that clearly a different case there would be no discipline right scuse me there then there would be no discipline if that's what you think right when you have there is a there is a poor case to that effect it's the i'm not sure if it's cited in any brief but it's  considered by the side an official for positive drug test other than the person being drugged it sounds like maybe there isn't one other than it depends on that again it depends on the nature of the job here this is a safety related position so for this type of position in the normal case someone would be proposed for removal and offered the alternative of rehabilitation plan and that is exactly what mr golden did in this case now then he also testified as to his decision making on the on the final decision the decision as to what finally should be done and he testified that he considered the the response that was tendered my mr graham's ride all of the evidence that mr grimm is right provided including the other testing and  he considered all of that but then concluded based on the safety nature of the position and the fact that they had offered the rehabilitation plan but it had not been accepted that he should be removed so it was crucially as you say at the time he was wearing his deciding officials had you're saying that the road record reflects granted what we have in the deposition testimony the record reflects that eleven twenty four to twenty five eleven twenty five she said i recall the testimony referring to the deposition testimony quite frankly i recall confused that point subsequent to that i had been hearing for this making sure i do the right thing and there was one that the times that i looked into when there is discretion ok so is that what you're what you're know at the time that he was deciding on the penalty that he had discretion and i just want to see whether i four earlier in direct testimony he said also that he had discretion but he also went through was you saying he knew he had discretion of the time that's the key thing yes i understand the  if for the moment just want to pick up on the questions i asked which she revealed if of the moment one would say ok everything stands in this case except for one thing the deciding official didn't know we had the right to exercise discretion what would be the proper result in that situation we affirm everything else but you have a problem that then i mean one alternative then is for the court to that the whole process the only thing would be deciding on the penalty whether he's whether the deciding official whether it's mr gold or someone else would then subpoena and say ok am i going to mitigate right right every point in the one final for just a very quick question is question was this issue raised in the raise before the a j and was it raised in the petition for rehearing this litigation question because we don't have those documents in the appendix and i was just wondering if this was an issue before the age where there's this testimony we have what was argued and was it argued on the petition for review treatment and rehabilitation plan demonstrated that he had the structure now the orders in the case law on that from both the federal circuit and you must be said in the final decision of r anything for that thank you