era remedies that are at issue in both of these cases are the same even though you have a different theory isn't there a conflict and isn't the other case  you're correct there are there is a nd case that was argued last month and the claims that issue in that case related to a breach of contract that is the contract being at issue in this case as well however there are  here at where the board stated the breach of the agreement is more accurately less proximate cause of his non selection rather than the reprimand itself if he covers for the relocation incentives for the el paso whereas here he is speaking for the damages as a result of his original whistleblower claim so what are the damages you're seeking in the court of claims case based on breach of contract the same twenty five percent or whatever the travel incentive that you're seeking here yes so the difference here is that mr levi is seeking and this case the emotional damages as a result of the letter of reprimand for his last salary ok so the issue in this case is that we are seeking damages as a result of the retaliation and all of the damages that follow from any foreseeable consequences as a result of that retaliation the nd case the breach of contract case was only filed as a result of the court's decision here saying that the the  prospect cause for mr levy relocation incentive damages now the district court the restrictive judge here made a lot of factual findings with regard to the selection for the position and also with regard that stand our review is for it's substantial evidence standard however the issue here is that there is no substantial evidence to support found out that the letter has not been expunged so do we know when that is because know that then it doesn't seem to me there will be a nexus between the pain and suffering that that caused that mr levi found out about the letter of the letter in the time in which he incurred pain and suffering because of the remainder of the reprimand letter being this file would have been from some period in march in april right a matter of weeks i assume it's not only that he knew about the letter of reprimand still remaining and his file but also the impact it had in being at his file being able to be accessed by anyone found the letter had not been expunged in march and it was actually expunged in april right so we're talking about a period between march and april i believe that mr levi knew that the letter with still on his file  but i would have to i don't believe that there is a distinct evidence and the record that you know of any kind of moment where he still found out that the letter was still on his file it was yes that he didn't know at least and then marsh that it still had not been expunged but i am not sure at this time without consulting with my client whether he had continuously  for calculating them out through april th that amount is calculated to be sixteen thousand five hundred dollars ok so how standard of review would an appellate court supposed to apply in assessing whether or not the judge awarding three thousand five hundred forces seventeen thousand i believe that the standard of review here is that both the arbitrary standard reasoning of the administrative judge here with respect to causation and the loss of the el paso position and that is the a j said that  knew about what the what the ha says as well just because dancy testified in accurately one doesn't mean at the moment on another point and of course the selection and his testimony is it didn't influence the selection because i didn't know about b j finds that that testimony was inaccurate he did know about it so i'm not quite understanding how the judge can say oh well dancy testified that he didn't have any effect because he didn't know about it i don't believe that the money is correct that he didn't know about it but somehow i still believe that he wasn't influenced by it how could that be logically correct on the judge then go on to believe that it didn't affect the decision making process when the only reason that was given for it's not affecting the process was he didn't know about  dancy's harben said is that she told them about it but she also said that it was a quote unquote bogus reprimand or based on bogus facts and that it shouldn't have been there you know and that it had been not addressing my question my question is how one the same time can the judge disbelieve his testimony to the didn't know about it and say that he did know about it and then say that his testimony that he didn't know about it is sufficient to sustain the lack of connection between the letter of reprimand and and his not getting the job that's not consistent as well of the judge didn't just use that inconsistency the judge believe he was in on the leadership panel the way i read the record he says the actor says it director which is him was on the leadership so if in fact he was influenced by the letter of right but that doesn't mean that could mean that he just didn't he he did not register when i was told him by in this harben during the process well can i go back to one of the predicates is that i mean i think i'm looking at the can and he's talking about a number of panels that were part of the leadership is that correct because i'm not seeing an indication and i don't know i i think for two reasons your honor one is that the wrongful agency action here is the placement of a lot of reprimand that shouldn't have been the issuance of a reprimand to the service for actions that he should not have been every day and then you knew that the the truth which is that the agent as the fact which is that the agency failed to comply allegedly failed to comply with the with the settlement agreement and didn't take the letter out till april if we knew that he knew that then why wouldn't his whatever pain and suffering concerns flowed from the letter of reprimand not have been extended all through that period  his your theory is he thought the foot the reprimand was there when the agency agreed to take it out he assumed it was out end of story but we all know now that they didn't take it and what if he had known at the time that they had complied with the agreement and still in his file as opposed to what he knew about the agency having agreed to take it out my wrong about that what i think argue that but there's no evidence that aside from of reprimand was was retracted by the agency on january th and that's why that date figures prominently in the ministry the judge's decision is cutting off the pain and suffering damages th because to that three week period he says specifically page a t the duration of the agency's action was a short period three weeks that is the time between the letter of reprimand and the settlement agreement reprimand and the settlement agreement he doesn't consider the period between the reprimand and the removal from the file that's correct and that's because when the settlement agreement was signed the agency sorry the judge says the appellant did not demonstrate any of the effects of that stablished harm or permanent or catastrophic way does that standard come from i mean i mean certainly nothing is permanent and catastrophic it would obviously likely result in a finding of substantial damages but the fact that it was not permanent and not catastrophic doesn't dictate that there should be very minimal or no damages right that's right i think it's a case by case valuation and i think on page  sixteen and seventeen and looked at the sort of damages that are awarded more permanent harm versus less permanent harm here and there was a lot of different allegations of harm from many different sources  from many different causes and there was also the timing of the harm of the impact on this early vote was spread over a long period of time and so i think i don't think that he that's a big chance of the board and also the court did either party in this case ask that the court hear the cases together consolidate them in any way shape or form because that would seem to in hin dancy was the decision maker here but his testimony was incorrect about stuff that he was told about the letter of reprimand i tried to hold on hold on a nd i just don't know where it is in the record there were the ha i think nomination package which is explained in appendix seventy seven dollars that the leadership group was the only group for the applicant using a total of a performance based interview questions and then the separate question is what was the know is wrong on the keystone and therefore falls apart  it's undisputed that this did not settle any of the claims for the damages for the retaliation mr levy cannot recover for the emotional damages in a breach of contract case his pain and suffering cannot be cut off by the government's promise to retract when the government wasn't our government didn't actually remove this letter from his file on april th he continued to suffer after he found out that this letter was still and maybe the a j c finding in that respect is actually inconsistent but there seems to be an alternative grounds for denying relief with respect to the el paso position and that is the a j c finding that it wasn't foreseeable that the issuance of the letter of reprimand would have that impact on the el paso job and in fact the proximate cause of the loss of the it is to make it known within the agency about his supposed to reprimand and so this is not an intervening act by a star party as a government argued but rather the disclosure was by an agency employee acting with that's what i was trying to explain with the entire point of issuing a letter of reprimand is to make it known within the agency and anyone who inquires about him about mr levy that he was reprimanded and so as a