in this case mr wing go is here because he bargained for and got a contract that enables him to present an appeal for any notice of term in the nation that he got after he entered into this last chance settlement agreement which was an unusual last chance saloon agreement different from any of those that i read in any of the contracts that were cited in the in the respondents brief this agreement require he be judged by the stand ups that was set out in the postal regulations recited and listed in that last chance settlement agreement and contrary to the a question but if we need that a thought i the ag in this case did make credibility determinations he did make findings of that and so whether if america determination or jurisdictional determination your loses and there's hardly any basis at all if they are to challenge those critical waiting to hear from the scrap lining and i'm addressing those issues right at the beginning i'm trying to say to the court here that this administration judge and the merit protection protection board didn't address the issues that it was supposed to have addressed as required by the eat less last ditch protection argument on appeal that the only case found him guilty of something but the thing that he without the use of what you agreed to do properly is that what your argument that i didn't hear you i'm sorry i'm sorry it is your argument on appeal to the a j found him guilty of something but the thing the a j found him guilty of is not but he promised to be good at doing it i do think the a j found him guilty of the things that he was committed to do question first and then you trying to tell me that ok is it your contention that the specification what he was charged with doing in the specification does not coincide with the obligation and that  if i'm understanding your question i mean it would be the a favorite to make a fine that coincides with the responsibilities that mr wing go ahead under the less chance allusions of the less chance suddenly agreement there is no way in his findings that there is a material violation of that settlement agreement but i guess what i'm unclear on is assuming you're correct it would only be arguably harmless error it can be made what's required and bush theme is significant me different from what charged in the specifications agnew saying that the sections of the manual that he did and to perform under see how he had matters that are not consistent with what he's tried with violating a specification if i read the cases cited by different for them what is the difference between the sections of the manual you heard to and see and the kind of conduct that's referenced in the fourth occasion oh oh if we look at what he is founded in the  particular violations first of all we find that he says that mr we go was he presented a serious danger to the children in the neighborhood he finds that on page six of his decision he attributes said to the testimony of a witness mrs dixon that's not what  three chance agreement he agreed to abide by section sixty one to six sixty five so i'm now looking at section six sixty five point one three discharge of duties employees are expected to discharge their duties assigned duties ineffectively six sixty five point one five also covered by the last chance agreement employees must obey the instructions of their supervisor at all times six sixty five point one six behavior in personal habits and it goes through the detail of how employees must follow instructions follow duties and gauge themselves professionally and appropriately how to specification five which the a j found to have been violated as a matter of credibility in fact in terms do and i invite the court to look at the at the customer and compare it to what his findings were in specific instances to evaluate whether or not in fact had the basis for some of his findings now i do not question that there are some findings for well there is some basis for some of his findings but why did he have to go beyond the testimony why do you have to expand morning your honor is michelle and with the respondent united states postal service i'd like to respond to the point that my esteemed opposing counsel was addressing which was the issue of materiality and whether the judge made findings with regard to it that the judge did hear i agree that the word material was not used by the judge when describing the violations or that does not mean that there was no finding the materiality and i would point you to a couple of things first actually three in specific the incoming mail drive safely and act professionally second the a j then went on in great detail and after making those virtually under viewable credibility findings to find that mr window did finally each of those rules  behavior in ways that were serious and repeated in other ratings in other words not instant in consequential or interior the a j found on page i believe it's eight of the opinion would also point out that one thing that mr camp has noted is that there are some evidence to support each of the specifications that were listed here so even under his few that the a j went beyond what the testimony requires which i disagree this is pretty much on all fours with gibson and in that gibson says if you sign a last chance agreement and it has a waiver in it saying that you're not going to challenge there and here he didn't cave he's not challenging the removal and if you violated the rules that removal would proves that he didn't violate the agreement if he proves that the agency materially did violate it on its own or if somehow entering that agreement in the first place was not voluntary there's no dispute here over that third point but an individual does i agree with the principle but i do believe that this court's decisions in gibson and link indicate that the court is deprived of jurisdiction over the propriety of the penalty no that the court that a j still till jurisdiction here d members that he took jurisdiction to determine the truth fictional issue it's i think it's somewhat strange reiner he doesn't use the word jurisdiction but he doesn't ignore the question of whether there was a violation of the greenman here because obviously if there wasn't a violation of the board gets jurisdiction to review whether this in nexus to the penalty or the propriety of the penalty has resumed and reasonable and your douglas which by the way is not something here that mr window has argued that it was somehow improper not to consider removal cases we could look as good guidance to judge platers concurrent opinions in both link and gibson would judge players indicate they somewhat a fallacy to call this jurisdiction because in reality the age eight is taking a look at the issue of a violation but in a sense it's almost like a breach of contract type of action but in the end it has no real effect so long as the a j still goes ahead to determine that the evidence supports the can one one have to prove that something did happen i dreamed it could put the petitioner in an earlier particular case the upon a particular difficulty however here that wasn't a problem also could color the way the a j looked at it in fact a j went on and fully considered all of the evidence after hearing and made specific credibility claims i could leave on page eight of the opinion that he specifically credited the customers and mr wayne the supervisor of mr wave us over the testimony of mr winkle and his witnesses so he wasn't merely saying i didn't come forth with enough to prove that he didn't violate this he this case is very troubling to me it's the first one i've ever had the opportunity to prove it or before school or throw me in the sense that this man has fourteen years for the postal service and he had bargained hard for this agreement that he made and it seemed to me upon my reading of it and looking at the way it was handled that he was not given the benefit of the great myth that he bargained for seemed to me that he was in titles to have the postal service establish by but i still believe this man deserves more than what i've heard that he is a man who has tried very hard to put forward what he believes he got when he worked hard to get this agreement and he got what he thought it was he thought he was getting it was a right to put forward the his arguments for proving for having a postal think the federal park of the administrative judge to address those kinds of issues are more than just harmless error up and i think the failure of the border to look at them and