we have five cases on account of this morning the government employee case from the m s p b three patent cases two of them from the tab and one from a district court and a come in the united states without proper procedure associating with people who have engaged in criminal activity providing inaccurate statements these are all but they're just not well they are fact questions your honor but i don't believe it's that simple they're ok this is a fact and this is the way we're going to interpret there's a interpretation to that fact but we will see the same thing and have different opinions we don't review witnesses we contracted to mean you know we have to give deference to the whole war against him but there are some thirteen facts that we don't believe were properly applied and we don't believe it really apply for example they want you to believe that she did all made all these tax inquiries and that they were made however what has to be looked at we believe in order to be fair to her and to be fair to the  too long to deal with these issues there right well not just waited too long on a there's a lot of inconsistency that should have been i think weighed by the judge you don't really dispute the underlying facts you say there might be mitigating circumstances but you don't dispute that any of the things that that she was charged with actually occurred to you i think to some degree it's disputed but is this  due process rights as a matter of fact you don't dispute that the underlying conduct occurred correct some of the way it was presented it did not occur that way or does that mean well she says she said ok she says she was told that she violated the texas arrangements when she castillo she didn't object she didn't feel that you know she should recuse herself she just did it then they come back and say after she after she turns then turned herself in and says i did th in two thousand and thirteen with carolyn bettis then they go hey well wait a minute in two thousand and eleven you also did this i'm sorry two thousand and eight you also did this with steele that's a fact but i think you have to look at those particular issues also if her supervisor told her to inquire and she did not turn around and turn herself in as far as to recuse herself and she's never been told that she has to on and that's what you do and that's what she did it then they should become should she have recused herself but she knew she showed up right she admitted she said well your honor there is a section in there and i think we brought it out in our brief that says that she's allowed every employee is allowed certain personal use of the text or any other machine that in the work area she also liberal it has in the united states  side of normal procedures to change not she let them in yes ok but and then she was supposed to turn herself in or make certain arrangements to have other people in the men but however th in her decision and we look at what the minister of judge did on a substantial evidence basis which is an amount of evidence that a reasonable person could right no your honor we i didn't represent she was represented by a union representative right washington and her union representative expressly waived any latch assignment right i don't believe i think that the judge brought it out apply i think she also if i think the factual represent that the judge actually went in and made some decisions and she actually stripped or struck some of the specifications ok but then when she goes to invest when she goes to investigation all this and they find all these exceptions and all i'm saying is i understand the  saying just because she had never been punished in the past for a reprimand that the past that anything that happened in the past can never be examined no i didn't say that's it but when you couple that and i put that in my brief when you couple that with some of the conduct that she's been charged with it clearly is still it goes back to living years and they even bring it out they they brought up the incident with the self reporting with  if it has any implication might have an implication with regard to the charge of misuse of the treasury enforcement communications system but the agency was not aware that she had misused the system in what i wanted to bring out is you can't use this for personal use you have to have an official need to know the information terms of her misuse case regard to the boyfriend that was only uncovered during the course of the office of professional responsibility investigation and yes it was a lengthly investigation it involved two interviews at the st interview which was in june of two thousand and sixteen she admits that she misused the treasury enforcement communication system once only once and she's asked specifically is that the only time you ever did it and she said suddenly time i ever did it that leads to further investigation of her and it's uncovered that documentation is that takes forever and she's left on the job to continue doing all of her duties so obviously there wasn't some grave concern that she was incapable of performing her duties meaning the that this a vent occurred eleven years before her discharge and the entire investigation took what three or four years and yet she still performing her duties the whole time and we're now supposed to believe that there is this grave belief that that she was incapable  officer is allowed to go into this law enforcement database for personal right is there no is there no factor that is considered in the douglas factors when it says she did it once eleven years ago and she's been performing her dirty since then she certainly you can look at but what the you look at whether or not there's been repetition but what the double what the deciding official found and the board found was that she was a repeat violator there and there are other types of violations were there not yes yes with regard to the st two the one i've just been discussing charge one she was a repeat violator that's the finding of both the but the most recent violation was eleven years before ger our investigation of the nd charge was allowing family members and close associates entry into the united states through her primary inspection lane and this was a continuing a pattern of conduct  complaint and the office of personal responsibility as alerted and then begins an investigation frankly misconduct is not going to be ferreted out but in this case there was a complaint did lead to a lengthly investigation and additional misconduct wasn't covered now i think the important point is that there was no prejudice as the board  found she was found to have a gauge in all of these forms of misconduct based on her own testimony in the two interviews that were conducted by the office of professional responsibility and there was all this documentary evidence before the judge and based on that he made the findings that she had indeed engaged in these four serious forms of misconduct like in her own self reporting not trigger an investigation because they that if you say a complaint is necessary what's wrong with self reporting the the self reporting was the incident back in two thousand and thirteen anything at that time subsequently when there were suspicion about why she would want to take credit for this recovery of all this these drugs then there was a more extensive investigation of exactly what was going on that i don't really understand that whole fact pattern so that she finds out you can't open the trunk and the driver can't seem to open the trunk so she goes and gets help there's nothing wrong with what she did right that's what i don't understand so this whole thing triggers this big investigation and what she did was exactly right right what she did was right yes that's true and there was pressure but it was right in the sense that she couldn't open the trunk so she had somebody else assist with opening the trunk she couldn't get it open the there was a report that it was suspicious that she didn't want to take credit for the finding of all the jobs the drugs which you know the car comes into her lane and normally the officer would be a potential witness if it ever went to you know i think what you said is non of the officer would want to take credit so they get a bonus correct but  she did say she wouldn't be a potential witness no she just she left and it was a mere suspicion of misconduct at that time that triggered the investigation but the government is allowed to do that the government is allowed to investigate its own employees and make determinations as to whether about whether they have an gauged in any misconduct or about the association with the someone who was convicted of  occurred yes her defense or her allegation there was that he was innocent but the problem was she had misused the database and gone into the database to check on him and the evidence in front of the judge was when you do that you uncover the fact that he had a felony drug conviction and the administrators judge in this case found because she ear went into the database and she remembers checking on her boyfriend she must've seen that he had a felony drug conviction so she must have known that and based on that she should have continued to have this association which goes on for years off and on with mr kids because still you know which is he's a felony drug conviction and in this court's decision of james versus state deal all the court pointed out that you don't want to have customs and border protection officers associating with known or suspected law violators and that's exactly what mr kristol you was and then the the the last violation also was very serious she gave inaccurate statements in the nd interview with the office of professional responsibility and there in particular these these relate to the use of the treasury enforcement communication system there it was the judge's finding that  was not credible during the nd interview because at st she denies having ever checked on anyone else in the system for personal reasons and then when she's shown the documentation she gives a vivid  account of my boyfriend i was concerned and i'm paraphrasing here are not but the exact language is in the investigation interview and she gives a vivid description of checking into the database on her boyfriend and based on that the judge doesn't find that she gave the correct information she gave incorrect information during the interview and again in terms of the latches defense there was no oh no prejudice and then also the board judge found that there was a waiver as we pointed out in our brief there was a waiver at two specific times there was a telephone conference when it goes back you're going great as i can find my daughter they're not helping me there and that's when the petitioner said ok let me see what i can do then she turned around and reported herself and that is what triggered the rest of the investigation to see if she had ever so use the texas them and she just got a reprimand for that she got a letter of reprimand right and the investigation took three years on a self reporting individual a person who says yes i did it i'm guilty and that's it they take three years to issue her a letter of reprimand and i have said before it was was used to stack is where it was prejudice it was used to stack it against her on on the removal issues didn't she benefit from the delay by having her job longer no sir it wouldn't benefit her because if it would have gone through its normal process the collective bargaining agreement says that the letter of reprimand would stay in the employee's record for eighteen months it would have been taken out by then they could refer to it was still have been not acted and we think that prejudice employer this time clearly violated dozen or so articles of the collective bargaining agreement i don't know what the union steward didn't bring it up but that's what happened now as far as the negligence are did disregard of c b p policy and procedures the alleged misconduct must be reported to the office of internal affairs the other joint intake center or another c b p approved method i think one factor you've been here eleven years that's not really given her a an equal or at least that an equitable view or application of the dead was factors the douglas factors the control are that the individual employee is given fair and equal treatment in the application of the agency's decision clearly if you take all the facts that's not what you're going to find she didn't rule all the specifications she dismissed a number of them about half of them but the point is that you still have to apply the douglas fact as you still have to apply the law which ones do you think were ignored that was part of said before the board ins of being a court of equity it is supposed to level the playing field the douglas factors are supposed to be applied you're going to find that the douglas factors were not properly applied and i think that is the controlling doctrine right now is that yes maybe she did do some of these things and she admitted it but on the same token what did the agency