is that an agency decision can be based only on the reasons set out in the proposal and second that the m s p the decision can be based only on the reasons set out in the agency decision in this case the deciding official diana ellis had only two jobs to do she didn't have to decide guilt or innocence and she didn't have to decide whether this was really punishable misconduct her first job was to  should this be punished like two week suspension to one suspension or discharge or something in between that's that was her job her other job was to simply stay cories and not this is not a hard thing to do she was to consider sit down and consider all the factors that would distinguish one case from another why would you what you are there any reasons to make this only two week suspension are there any reasons to make a discharge to me a kind of an apple in order to see you can tell me why i am wrong but in order to get dealt with relying on conduct that would never disclose to the employee here it seems to me reading your argument we're not talking about he relied on conduct that was not disclosed in the hope of it kind of talking about the consequences of what he did cost trend that's point one and point two is there is a reference to costs in training in those other reason that she inconvenience the commissioner of social security the reason that her conduct resulted in the understaffing for someone's close period of time of chicago getting a and objective that she was entitled to if they had said anywhere one of the factors we're relying on is the fact that you consciously intended your conduct not that the falsification but the assumption on subsequent conduct you attended that to result in intimidation and coercion she would have been able to try to court refute it say one hundred staff every that is a valid aggravating factor that changes it you know from a pure and simple or adds to the the consequences of active dishonestly not only the jackets on slick but i had the following result if they had said that then she would have been able to either admit or refute and that's the sort of information that we need so what's this reference you're on or in many of us are underlying fact we sent you the training ok that's not doesn't explain to her that we're firing you in part because of doing that he had a particular adverse consequences you're not talking about other instances of conduct you're talking about how much in detail you discuss what the potential consequences of what you did are to the agency right know that nothing that of contacts and the conduct and you're you're arguing about the bottom line in terms of how they might have been described but there's no you're not arguing that there with conduct that was brought in by the arbitrator that wasn't already outlined in that no argue that no i'm not but i do think it's highly significant to engage in coercion and intimidation is a very serious offense she could be punished for that whether or not she coercion is a separate punishable offense it may be that if you add intent to the factual the facts outlined by the agency that she sent an email she contacted the regional director and she met with the regional director it may be that since you had the intent to call worse and intimidate then you have it for a punishable offense but you have to somewhere it's like the the mets case where the issue is whether the employee threatened to be fired for threatening there are facts that have to be proven if you're going to are punish somebody for something and they before the proven they have to be alleged and that's what we have on an issue after issue here they all have to it does not  they please the court at page fifty eight of the appendix which is part of the notice of proposed removal the agency went into great detail the second full paragraph actually starting the top of the page claiming that ms williams paragraph down below the proposing letter basically says you were fully aware at the time that you contacted i'm paraphrasing now the commissioner of social security that your medical documentation was false she had forged the signature and yet she contacted the commissioners so there was abundant notice in the proposing letter that the agency that the fax underlined the two that not really i think what happened was the arbitrator characterized certain events as say coercion or internment or intimidation or the workplace shortage issue but it's it means the same thing the only reason she could possibly have gone to the commissioner and she never denied him was that she was unhappy with the agency's decision to deny the third request for the transfer and what the agency explained in the proposing letter and that and then in the notice of decision and but the proposing letter is key because the notice is that the showed an utter lack of respect for others will security officials including the head of the agency in the regional director and other people in the other social security offices the offices from which she transfer the offices to which she transferred so that while perhaps the word coercion was not used on page fifty eight in effect her actions by a second time forging or having someone forge a doctor's signature to try to get a hardship transfer knowing that what she had done was fraudulent knowing that the commissioner nor did anybody else in the agency know that it was fraudulent in that in effect to try to get what she wanted  so that there's actually no basis to the argument that she was not a notice of what it was that the agency had charged in fact she didn't contest any of the underlying facts she really only argued below if she argues here that the penalty was was too severe with respect to the workplace shortage of page fifty four of the proposing letter the first full paragraph under reason to  basically explain that the first hardship transfer meant that her position from the office where she had been was encumbered meaning that no one else could be hired for that five she received training and mentoring in the new position which she admitted because the loss of production she wasn't performing work when she was being trained for months the mentors who were mentoring her were not able to perform work while they were mentoring her so while the proposing letter doesn't use the term workplace shortage that's obviously what it is that's what it means and she had a meaningful opportunity to try to contest that but in request was based on false information so that basically under ward the key is what's in the notice of proposed removal and this was an eight page single spaced letter that went into great detail about dates what she did her misconduct that and the consequences of her misconduct on the agency and then when it came to be removing letter with miss ellis a miss ellis rely in large part on the proposing letter that typically happens and then responded to ms williams carter's arguments about the douglas factors and why of trust she had lied throughout to many people her supervisors she had lied to the inspector general the general's investigator she only admitted the truth once she was kind of caught in the lie each used it was just unconscionable that someone in a position of trust dealing with social security claimants as they said a vulnerable part of the population would live to this extent to try to get what she wanted she had contacts with the public management could no longer trust her with respect to with an argument to which accounts alluded this other employee one year later that  fourteen day suspension in effect is the relevant there's no way that an elephant could have known and may two thousand and eight when she decided on the penalty removal what was going to happen a year later with someone else so that been rehabilitated here given her repeated intentional fraudulent activity and lies to any number of people there was no potential for rehabilitation so that basically under word the notice of polls removal at pages fifty two to fifty eight of the appendix the is extremely thorough she never contested any of the underlying facts which do go to the penalty given the seriousness of the offense and if there are no further questions she would respectfully request that the may have more than four minutes big this could have been an easy case this could have been a simple case you acted dishonestly and we fire people who act dishonestly or could be you submitted false medical documentation and we always fire people who do that this is a social security administration now it comes to complicated in part by the fact that obviously they don't fire people simply for repeatedly nine or ten times the other case of using documentation they have they way the reasons in the earlier case mr ellis weighed the facts didn't we cite any an else's case i'm sorry as we as carter's case miss alice had to go through the same process presumably she did it and in her head at least decided on for example the fact that  we were told when the proposals made or even when the decision was made and that's you know that that rises to the point of unconstitutional unfairness it's just icky they can't rely on reasons that were not notified of then the mere fact that you know we have fax he sent an email to the commissioner which could be interpreted as inconveniencing the commissioner could be confirmed but it as intimidating commissioner or