argument if we agree and therefore eliminate the opportunity for whatever was there was communicated expired and doesn't your client run the risk of an even more of the communication the nature of the communication is brought out in an entirely new proceeding your honor the communication should not be part of the proceeding at all but yes your honor there is a risk  it is difficult and in fact in my view impossible to determine whether and to what extent any mitigation could have greater or lesser or otherwise if things had proceeded differently so than i think is that the heart of your problem is that it's not so much a question of do we ever a class five mitigating evidence of something that could rise to the level of a due process violation but in your case even though he says i only used it for medication because he has no recollection at all of what he received he could very well have received aggravating material as well as mitigating material or maybe not given as much attention to additional mitigating material you just don't have any clue wh him he doesn't even remember who communicated it him however he remembers it being a positive it was the basis for him deciding to not propose removal but instead proposal only demotion where is that testimony here because i remember it i don't have it  and is my recollection of that testimony accurate that he said i don't remember who told it to me and i don't member precisely what they told me but i remember that it caused me to decide to lower the section yes testimony so given that factual record why how how is there an opening here for the idea that there is anything harmful or aggravating at all number one given what he said i don't see how you could extrapolate the idea that it was anything harmful but moreover i don't see how you think you could get anything more helpful since he's saying i remember nothing other than it was helpful to the guy so what would remain and give your private i appreciate your concern your honor and i believe it dovetails with the opening portion of judge malice question a moment ago that is what would happen if this were to go back to you when you began the questioning here and if things were to go back presumably this would not be decided by the same deciding official information was planning on removing your client that was what he was planning on doing on the basis of the evidence without the ex parte communication all the ex parte communication did was help your client so why i just don't understand for the life of me why you're here because i just really see this ending up worse for your client not better if it goes back so i'm i'm just so perplexed at what you think you're going to get if this goes back if you extract the ex parte communication here back in the world where this nothing but one thing we know from morning is that he said it only caused him to want to reduce the penalty there's absolutely no testimony that was elicited that gives anything any even the slightest indication that there could have been any aggravating information about what was conveyed it's quite difficult to say that someone did not receive any aggravating information when that same someone says i do not recall what from whom or from where i received any information at the end what he says is that information with the information i did get caused me to mitigate his penalty but again i appreciate your concern your honor if we look to the douglas factors worksheet that is the only contemporaneous documentation of the second officers also one other thing he says that what was conveyed to him was what your client presented at the six fifteen mediation correct doesn't he say what was conveyed to him was the information that your client presented at six fifteen nation those are the two facts we know he was conveyed them supposedly was only the information possessed by your client and presented and number two was what caused him to mitigate the penalty doesn't fact what mr williams stated at the mediation he cannot know that as he was not personally at the mediation and so here we are really shooting it out an unknown and unknowable and we cannot determine on that record ok first during this discussion we have not yet looked back to the douglas factors worksheet the contemporaneous documentation associated with the deciding officers penalty decision in the douglas factors worksheet the six fifty mediation is not referenced under factors for all love and regarding mitigation and in fact under sections from under factors four and eleven the deciding officer said no i see no basis to mitigate the penalty under factor twelve where the deciding officer references the six fifty medication or the six of the mediation the deciding officer says in view of what was said at the six fifty mediation i think another opportunity to be an employee here at the postal service is warranted it is only a leader in testimony that the question of whether this is purely mitigating or mitigating versus aggravating came up at a subsequent proceeding before the m s p on the factual record that is suggestive that there is at least the possibility that this had an impact on him that could have been aggravating and or mitigating on the legal end of this i think we cannot lose sight of the essential fact that the question we are deciding it cannot be with the benefit of hindsight in any given case whether the particular case would likely have been decided more in favor of or more adversely to any particular party especially when we do not know for certain how that would come out rather from a constitutional perspective we need to determine whether the ex parte communication was material and here i think there can be no dispute but that it was material why concerns to be so likely to cause prejudice that no employee can fairly be required to be subjected to deprivation of property under some circumstances tell me hal the ex parte a communication here w likely to cause prejudice to this particular individual because due process i don't believe extends only diluting material information under our case law i believe it extends to new material information that is so likely to cause prejudice that no employee can be fairly required etc etc so if that's my understanding of our case law which is completely consistent with both ward and stone what about this and you have the burden of proof this is your affirmative so how have you established to me that there was an ex parte communication in this case that was so likely to cause prejudice to th the only evidence we have as to how with the ultimate penalty was determined as to what particular factor impacted the decision maker and ultimately resulted in the setting of the penalty the mediation i am willing to give you another chance of the agency that is suggestive that but for this there might have been a decision to remove but it does not say i recommend remov of proof that the new and material evidence was quote so likely to cause prejudice that no employee can be fairly required is subject to deprivation of propaganda or such circumstances so how have you established since it's your burden of proof of ward when we talk we emphasize that the ultimate inquiry is whether the ex parte communication is so substantial and so lightly because prejudice so what where is your prejudice where's your proof of prejudice you're operating under the idea that new material is in a vacuum new material is not in a vacuum in both of these cases it was said we emphasised the ultimate inquiry is whether the ex parte communication is quote so substantial and so likely to cause prejudice that is the spin they put on new material you may not like it but both cases say that expressly that's what they mean by human material they don't mean new material in the abstract as you would like to use they mean new and material that is sets out a standard of new material and several factors to consider in determining what this new material those factors have been this court's going principles since then and in war and even subsequently the young and this court has said where it is determined that the evidence was in fact relied upon that to alter a decision then the primary factor we need to focus on is factor one of the stone factors whether the information is new if you're venting out the prejudice i think both cases this quote is i'm reading you a quote this is the quote from ward and it's quoting still we emphasize the ultimate inquiry is whether the ex parte communication is so substantial and so into the second point of my response the first being that i believe that's not the correct reading of the line of cases that it is not new material and a third prong prejudicial but directly to where is the prejudice here the prejudice here is in not knowing even to this date what information was brought in and whether that information could have or whether the proceedings otherwise could have resulted in a lesser penalty we do not vacuum on the facts of this case as what would the appropriate remedy have then absent an ex parte communication that to this date we still do not know what it was and the best we can do is provide a constitutionally correct proceeding in which the government employee can have the opportunity with outs procedurally improper ex parte to communications to advocate his case and to hope for a constitutionally correct result misconduct on as this the court has recognized already of the key issue here is penalty as opposed to the misconduct itself mr williams did not appeal to the board or to this court the fact that he can that he was engag case here when it comes to due process violation i merely wanted to reiterate the fact that something that each of the judges has already stated that if this does go back down the misconduct is still in place the finding of misconduct will remain in place it will be rest probably improper and communicating what it was it transpired in the immediate we can see that your honor it was in fact improper mr williams was informed that the mediation proceeding was going to be confidential and that it would not be  provided to the decision maker so how does your that concession square with the fact that we set in stone that it is due process violations are not subject to harm the fair analysis well it as a really what you're arguing right come to the ultimate conclusion that the board didn't fact come to which was that this information was not substantial and so prejudicial which is the standard that this quote laid out in stone and mortar and if you go through the factors you find that it does appear to be and he said no that's that is absolutely correct your honor and taken together with the fact that it was the facts presented by mr williams himself and the fact that the burden is on mr williams to prove that this was on other than humility is based on that alon the score confirm i guess my problem is with your you are right line that you try to draw with the notion that if you drill down the information was mitigating and because it came from a confidential concluding that all mitigating information is always going to be something that doesn't violate due process i think you could stick to the facts here and that's how we read the boards decisions as is essentially sticking to the facts of it laid out  stone factors and then it came to the conclusion based on the so substantial and so likely to cause prejudice standard that was the ultimate basis of the of the of the board's determination so based on that if the honor i think this is clarified in stone that if the expert a communication is ultimately found to be the new and material following the factors provided in stone your honor is identified the ultimate inquiry then that raises the level of the due process issue and there is no harmless error analysis if so it isn't material but see you understand that  in the context of a post or an award both of those were aggravating communications communications of prior bad acts by the employee rights of both of those went to the heart of the notice and fairness concern right those are the facts of both war and stone correction yes and so in the context of somebody communicating that is not an official bad stuff about an employee that could and possibly did impact the decision you know that's where due process concerns would absolutely be at their house they'd have to be because fairness a notice to me and that you have a right to confront your accusers you have a right to know all of the bad things about you that could possibly be forging a basis for the  and so that's why i'm just having a little trouble reconciling in stone when they say not every expert communication is a procedural defect so substantial and so likely to cause prejudice i feel like they meant for the real problem i understand your definition of material it comports with everything i know to be the correct definition material affecting outcome i get but at least in stone and word they seem to work into that idea of materiality approaches first we look at the constitutional significance if it does not rise to a level of constitutional significance and then we took back to procedural significance and very again on a harmless error analysis if the definition of the end of the encourage and i understand how they how they how the case is built in this it's substantiality analysis into the new and material but isn't it that the distinction that you want to make is that if it and material and it's a fact that he wears red ten issues to work versus new and material and it's a disclosure of everything that happened at the confidential mediation that that's where that that the due process increase would end and you would not go into a harmless er so understand the hypothetical you're putting out that's generally the tricks i think that would largely be built into the materiality analysis as to whether it's red shoes or of the totality of what had been presented how that is deemed to be material i think that is part and parcel of the singular analysis is if we do not rise to that level of materiality if it is only whether you were red shoes then clearly we might say there is no no due process  as a uniform code and then we move on to how most are in a hospital me just make sure i understand how your view of new and material would affect cases in general ok so much or what if in this case we did know what if the deciding official told us precisely what had been communicated to him what had been communicated from the mediation was that mr williams is a really nice guy who worked for twenty seven years for the post office and has never been in trouble before i know those are not precisely the facts of this case and i know nothing about whether he's a nice guy but i know that he did have some prior disciplinary issues in the p t o i've been in the post office but but putting those aside suppose it was communicating was looking at a really nice guy everybody really likes them and he's worked for the post office for a long time should give him another chance and suppose that's what the dividing official says this is verbatim what is communicated to me is communicated by a supervisor from the mediation and this is what was taken away and i suppose that he then says in yes that affected my decision to lower his section that is still new and material under your definition because it is information that your client didn't have the opportunity to respond to or but it's clear that the only it was only positive and it's clear that the only result was to lower the sanction you still think this procedure would be infirmed and due process would require vacating and remanding under those circumstances if the employee so requested your honor yes i believe that the analysis in stone albeit in the context of an aggravating communication ward will be in the context of an aggravating communication the analysis done is clear that employee has a right to be aware of the charges and the evidence presented not just the negative as events but also the positive evidence so the employee has the opportunity to address both the negative and the positive and to provide the opportunity to allow that to impact the case in fact i think this goes back to your question in a moment ago judge o'malley that based on the transcript in front of the mistreated judge  appear that the only evidence the design official got was not aggravate was not negative that is in fact what his testimony was it doesn't quite square with the fact that he has no recollection of what he got it's quite difficult for someone to remember i think it a million anything negative by also have no recollection of what i got at all from who or where but you had an opportunity to cross examine to press whether he had understanding of the mr williams would like the benefit of an entirely new and constitutionally craft proceeding that may result in a lesser penalty that may result in a greater penalty but he would then have the full benefit of the due process afforded to him as to the opportunity to cross examination was ultimately performed or provided the important thing that we keep in mind is that there was a post decision opportunity to cross cross examine during proceedings before the merits or since protection board that was not a preview decisional opportunity to take on the evidence that had been presented which is what is required constitutionally in the stone line of cases