this case comes before for this court is a removal proceeding after a board decision at the very heart of the removal penalty there are two separate findings by the board one was the sustaining the unnecessary display of a weapon charge which reversed the lower presiding judge and the second was the lack of can charge this significant of those findings to this removal penalty really are to fall because first the board indulges in an extensive analysis of both of those charges in reversing the lower judge and i would argue that it's not mere surplusage to spend so much time arguing in favor of those two charges and ultimately the board concluded that as a result of as the administrate of judge found the deciding official conferred with mr rodriguez his local supervisor who expressed that he had no confidence in rodriguez because he necessarily displayed a weapon or duty and the problem is that if fact that was not the case then that factor should not be considered materially in deciding a penalty because his potential for rehabilitation is as we know the so called douglas factors what's more importantly and it was because the manager consider the unnecessary display of a weapon to be so important that he felt his potential for rehabilitation was not there so if that is remove an escalating series of events that to get out gets out of control a problem with his girlfriend leads to a problem rather than to contribute to their escalation well i would agree that his he committed a provocative act by slamming the gentlemen's vehicle  rodriguez his manager and the only fact that rodriguez's manager mention was the display of the weapon there was no further discussion of any other factors that's all that appears in the record all that we're doing a speculation as to what's important what's not but but but the fact finding suggests that the only relevant factor was the display of the weapon with respect to that second charge now whether appropriate as i read the board's decision that merely because he for a vote somebody to violence that he therefore is barred from defending himself that is not the law yes he was from he was back to keeping space between him and they retaliate or admitted that his intent was to puddle him with his fists and to hit him now whether that use of force that is a force has not been shown to be justified based on the previous provocative act so now he escalates it i agree to a point where he's threatening physical violence to mr rodriguez now the issue is whether in that split second that mr rodriguez has to assess a situation when he's not posing a threat to this retaliate or whether he can display his weapons point to this weapon for a short period of time in order to defend him so he's in necessary officer asked in fact at the hearing at mit's he asked did you point the weapon mr rodriguez says yes but he doesn't say and in addition to that i threw the weapon he says he did answer truthfully the board applied the wrong standard the so called free from fault standard which i think that what we're discussing here is well what does it mean to be free from fault does it mean that well because he was provocative earlier on that he's not free from fault and he's not free to defend himself or is free from fault means simply that he's not posing a threat of violence to retaliate if that's what he means could he have simply withdrawn and made this problem go away it's states pop he was back he was what according to the testimony he was walking away he was he was there not in the air right and he was walking away and he was  withdrawing and then the gentleman comes out resolves to punch and pummel him and our guy gets his our prize attention and he's walking backwards trying to keep his distance and that's when the way the weapon briefly in order to cancer charge appears to be rooted in elected or a false statement are completely different this court has made the distinction over and over again but we understand a lack of candor is is developed in the context of fiduciary relationships employer employee relationship stressed relationships where there's a philosophy of full disclosure but if you're on a street in an ongoing dialogue with a local police officer conducting a criminal investigation that really doesn't that one doesn't apply so the board with the board  the record establishes that he said no going in the testimony to the testimony something's townsmen cross examination and the officer says well could have been a different question the officer said it could have been a different question but he didn't say anything about what the answer was the so the officer in this is where the officer saying admit it maybe i'm not sure exactly what i asked and i may have said did you point the weapon but the officer then said and this is it in process actually questioning by the judge itself that the officer said that he said i never drew my weapon so it doesn't make a lot of sense does it misstated judge after reaching the conclusion that he was only at the g point the weapon the military judge also said therefore the agency had to show that he denied drawing his weapon for his mind between pointing a weapon and someone and gone absolutely not your honor but the police officer here testified that he understood mr rodriguez's answer to be asked did you commit a felony in pointing a firearm in someone that it's reasonable to say no if it to short circuiting if he's using talk talk with somebody said when a police officer at did you draw your weapon or even did you point your weapon and they represented they would be to say as the board found here i drew my weapon but i didn't point it that would be a full answer to the question that would sure  indicating he was driving in fact your honor i don't know that i know you once ok i don't think there's anything in the record suggesting that he had been drinking or that that played a part in what was going on there's a lot of it understanding to be saying is that quite he said i did not draw my weapon the words did you pointed he said i did not draw so these distinctions if there are any distinctions between when drawing to the kind of irrelevant if the answer was i didn't draw that's that's cars that we've been discussing with the charge that he inappropriately displayed his weapon and the board's conclusion rests on the we think objectionable proposition that if you start a fight the agency  charge you with with pulling your weapon during that fight and you can't claim self defense if you start a fight and that's really what he's what he's saying here what he relied on the board to say was self defense and we heard an explanation of that today that at that moment when he pulled the gun this is their argument that the moment he pulled his gun he needed to pull it because he was about to get beat up but and the board the board lawyer that if you start the fight you can't then come in later and say well self defense at the moment  to look through what happened earlier yesterday if to look to the whole circumstances and that's what he was charged with here is the whole circumstances did what he did improper when he pulled his weapon and the answer is yes entirely separate and whether the agency can fire somebody if we take his argument to its logical conclusion whenever employees get in fights the agency can't move anybody because everybody can say all of the self defense of the for all and i'm defending myself and they were brought in started a br maris's was was wrong if he had been an employee the prize would have been removed but that's not the question here we're not dealing with criminal liability ruling dealing with what mr rodriguez did and whether the agency can remove him for that entirely separate from the lack of candor charge or whether it appropriately drew his weapon the first point in our brief in the what i'd like to stress is that the board was correct nonetheless that based on the two charges that were affirmed it was appropriate for him to be removed  brief because it was conceded that he did it what happened is there was a entirely different incident in a court room where a somebody went and attacked and assistant u s attorney and it caught on video and he was accidently sent that video and then he was sent an e mail saying if you got this in air please delete it and he deleted it from his outlook account but he posted it on youtube and learn things that are up i forget the name of the web the other web site and he showed poor judgment in posting that video which caused a problem between the u s attorney's office and the u s marshal office and he did it willfully and that's part of the charge it succeeded so it's not just this traffic guns charge and also that based on the two charges of the administrative judge of firms the full board we ask you to affirm the removal and at me for the board he didn't respond he didn't even address that he only addressed the two charges that he addressed in his opening brief here and this court made clear that any issues not raised in the opening brief his way so we would argue that issues waves in its entirety in the first place even if not waived as i was just discussing there's substantial evidence supporting that determination very quickly a video of how how do we get past that point that the professional responsibility and the after the misconduct along would be enough to sustain charging is the penalty attached to that matter is rooted into the unnecessary display the weapon because according to the cited official when again he spoke to the supervisor that's what the supervisor raised as an aggravating factor and well i didn't i didn't waive it because the undecided display of a weapon charge permeates the entire claim against mr very gives and if that charge is dismissed then the so i thank you very much for your time thank you