the first issue is the specific method by which the administrative judge resolved the issue the second issue which is closely related is the agency's argument that you should expand or type i suppose the causation requirement of the douglas factors relevant to medical and parent let me start by conceding certainly that there has to be some level of causation the mere fact that somebody is mentally or physically impaired by itself is not a mitigating factor there's always going to have to be some connection between that impairment mental or physical and the actual conduct with which they're charged there has to be some connection but the road has in the past used the standard that must have played a part in the in the light this court that reasoning that analysis the government now is argue or form or stringent causation standard literal causation that secondary issue the primary issues one course we have to get by for you don't disagree or imply i'm not sure that i would have to could even could agree with that so i'm not sure the board or at least the administrative judge there was no opinion from the board itself did that the administrative board even applied causation standard instead what the administrative judge was to did was somewhat similar to what had the ministry of judge did malloy malloy the to the ministry little bit further in and made at least a few comments about the mitigation evidence the evidence of mental impairment it may be that not not really a causation finding for say but rather first of all saying number one mr mr  could have gone out and you know tried to get treatment and secondly i'm not sure that certain circumstances here show that the mental disability the severe depression was affecting his ability it affected his judgment i suppose in some says that is a kin to a causation issue but then again the the reason the rationale given by the ministry of judge for that finding is mr schechner says that his work performance was not affected but in fact that he was big a to have all sorts of problems he was losing his attention he was losing his energy he was his judgment was being impaired and we presented evidence that from a coworker corroborating all that that the other people working with mr schechter could see the difference in his behavior coping mechanism if you have somebody who is who severely depressed who's having trouble at the office with the people like that do it's going to be to get away from the stress and leave the conduct he was in even gauging am essentially was leaving the office and going diabetes his hypoglycemia and often alternately that he was developing parkinson's that these are these ailments are things that affect the brain and for which depression is a symptom it's not a matter of being depressed because you have parkinson's but rather the parkinson's that this was affecting his judgment at the time depression is it's the it behavior he engaged is exactly frankly the kind of behavior you would expect from a severely depressed person getting away from a stressful environment that's how he explained it and try to essentially in a way to in a way self medicating although sometimes people with mental illness go out and self medicate with illegal drugs he was giving himself a former psychotherapy that is consistent with his hit with his depressed behavior you're able to get to the doctor is not inconsistent with being depressed it's not is inconsistent with this being a legitimate mitigating factor that needed to be considered likewise she said well mr checker says it is where performance was good but then she found that he knew he could at the react because we had not because she she would look at him for example say well he was able to go to the doctor to try to cover up his behavior she very similar to what the administrative judge did malloy found ways to sidestep the issue whereas the judge  i would say i would i would course have the additional argument that if the her grounds for rejecting it were not supported by substantial evidence which course we've also dealt with but she she did not she  recognized the evidence exist existed and that ultimately may be the statement that you were just quoted that she doesn't she found it was not a mitigating factor at all which is why which on its face is not good under the law but then she goes on and gives their various link that for example the fact that he was able to go to doc the doctor's office that that is evidence somehow that the back to me start because the fact that she's finding here the operative fact is made that i just quoted that were saying that there's no substantial evidence for that the her rejection of the job that the depression effect that cloud his ability to think clearly with that finding is not we presented quite a bit of evidence that he was not forming adequately at work that he wasn't here that was on refuted that he didn't tell anyone he was using the vehicle what does that have to do with whether his judgment is clouded the fact  not telling anybody what he's doing these gauging this in this conduct shows that his judgment is and class is is clouded in these particular facts to use this to reach this larger conclusion that the facts do not support it and that's really where we're going and when i talk about substantial evidence it's not so much that these subsidiary backs are not supported by evidence but whether they don't support the factual conclusion that she reaches that her courage actually the notion that his the government is not intending to create a higher burden than that which mr secular cited in his brief war that's been discussed in the court decisions the board's decision is all use concepts of some kind of causal relationship between the misconduct and the mental impairment for example in the grossman decision by the board the board looked at whether the impairment accounted for the misconduct and in macdowell decision the board looked at whether the number sprayed down caused in this conduct all of these decisions reflect some kind of causal relationship we would argue that the stronger the causal connection perhaps the greater the weight that it would be to the evidence of mental impairment the greater mitigating weight but we're not establishing a new standard in fact mr schechner has only referred to the fact that his misconduct was caused by his misconduct was caused by a mental impairment so both the board and the parties use the concept of causal relationships  in the same way and so we're not creating a new standard not seeking to impose a higher burden on mr shatner and he's already been established in the board's decisions and the administrative judge  misconduct in this court saw it no reference at all to that evidence and the and when it's right of judges and initial decision in that case here in contrast the administrative judge detailed all of the evidence that was presented claim of depression and then page thirty six of the joint appendix the page we were just discussing with petitioners counsel she weighs in she considers that evidence and she concludes that it didn't play a part in his misconduct and she doesn't use that exact language but that is the essence of her conclusion so the administrative judge here has done exactly what this court wanted the administrative judge to do in the case which was to take into consideration the mental impairment evidence and weighed against all the other douglas factors here the administrative judge agreed with the deciding official that the misconduct here was quite serious and that it reflected on his integrity as well as the his supervisors ability to trust his to trust mr shatner's ability to perform his responsibilities as a security inspector which required him to go out inspect the air cargo carriers for security weaknesses and protect the public against the rest so the administrative judge did take into account the medical evidence that was presented she just concluded that it didn't play a part in his or if it played a part in the misconduct then would have to be considered in the context of the other douglas factors and mr vaile of the deciding official testified that he was impairment played a part in the misconduct would just be one of the numerous factors that would have to be weighed in determining the appropriate penalty in this case substantial evidence he doesn't dispute that  lied he does but he did the record it's clear that in december of two thousand and eight he received a performance award for his con for his performance and in two thousand and eight that's something that the administrative judge specifically mentioned in her opinion  d mr schechner has stated in his brief that he does somewhat dispute the the charge that he was negligent in performing his responsibilities and so there is sufficient are substantial evidence in the record for the administrative judge to conclude that he was performing his responsibilities adequately through two thousand and eight and this court will  thirty one u s c section thirteen forty nine b authorizes the deciding fishel to impose suspension without pay for up to a month and that statute also indicates that under more serious circumstances the penalty could be suspension for a longer period of time or even summary removal and here mr schechner engaged in not just one instance of misuse of the government vehicle but thirty  instances of misuse of government vehicle and then on top of that he on forty six different occasions misused the government resources he on numerous occasions falsified his time in attendance records and also engaged in three instances of negligent performance of his responsibility so under thirty one u s c section thirteen forty nine be the deciding official reasonably concluded that removal was an appropriate remedy and  between october two thousand and eight and the end of january two thousand and nine when the when his supervisor noticed that there was a discrepancy between the mileage used on his car and the in that inspections that he was he was making and the deciding official to take into account that his the evidence of mr schechner is relatively good work history and he also noted however that in two thousand and five mr schechner had been placed on a performance improvement plan so all of this evidence was presented to the deciding official as well as the the administrative judge and was weighed and balanced along with the other  what we're asking you to do is to look to see whether there is substantial evidence to support the administrative judge's finding that we did that that there was no evidence or how or she phrased it again that the hint that the depression was  not clouding his judgement we're asking you to look to see whether there is substantial evidence to support that claim of the only evidence is from our psychiatry wrists are treating physician mr checking himself in a coworker all telling you that it did instead she she is saying they've been straight judges say i find that that's not the case and that is not asking you to weigh the evidence to look to ask you to determine whether there was substantial evidence that is in fact within your power that is of course the standard review review finally let me say one thing about the standard the government is asking in its briefing perhaps that this is not come through clearly i'm not saying that they're right or arguing for a different causation standard per se but rather what they are arguing is that we present expert