the united states court of appeals for the federal circuit is now open and in session god save the united states and this honorable court morning your honor and may have please the court the court's recent decision and sayers controls the outcome and this appeal in particular sayers confirms mr harrington's position that the entire decision of the board including the penalty must be reviewed must be reviewed and be supported by substantial evidence sayers makes that clear and in several places but it but in particular for example at page  under sayers to address the proper standard under seven hundred and fourteen if that's what we hold applies here it appears from the government's response to the rule twenty a j letter that they think sayers is not applicable because because it turned on the retroactivity issue and and they argue that we waived that issue but sayers directly confronts the issue whether the decision includes the penalty and that was of course directly confronted by or briefs so it's not clear that that they've really addressed whether remand vs a reversal is appropriate i think they've in their read brief have stated that they think the court could affirm the judgment below because of evidence that that's outside the record and that we've moved to strike and that's the v a handbook that they've cited for the st time and the red briefs that says the maximum allowable penalty for a violation of the policy of the privacy policy could be removal that's not something that either the agency or the or the administrative judge addressed below wel that that there is no evidence in the record on which he could that he could find substantial evidence to support removal under the circumstances no  are the only evidence of record in the at the board related to the charge the charges that were not sustained if you look to the removal notice it refers to deceitful actions and lack of cooperation those can only refer to the charges that were dropped and particular mr harrington's decision not to cooperate with the investigation and the voice mail that message did you did you argue before the board that the penalty was not supported by substantial evidence under seven  harrington argued before the board that the penalty was unreasonable and light of for example his belief that he was providing information that was already provided it's undisputed that the information he provided had already been authorized photo and his representative at the board for per for the oral response to the charges stated that the penalty was excessive in light of the circumstances again the circumstances being that the information that w shared had already been authorized for at least and was in fact released to mr rocker there was testimony at the m s b be hearing before the administrative judge that the information that was shared was in fact identical to information that had prior previously been released through for a request so we have you think that there always have a situation here in which it would seem that at least they remain and would be required to consider whether should direct the judge to consider the applicability of a different administrative proceeding that was in existence at the time the infraction or the alleged infraction occurred i think the agency should be entitled to make that determination for itself but that's not something that we're arguing that the federal circuit should and should instruct the agency to do i think and whose i thought that you had now discovered improperly applied to mr herrick in light of the date of the only infraction that was upheld but as you noted that's not something that we raised in our opening brief at the very least the administrative judge if if if this court or the administrative judge concludes that seven hundred and fourteen properly applies mr harrington at the very least the ministry of judge has to determine whether the penalty imposed is supported by substantial evidence we'll get that would appear to be the case but i'm i'm confused as to what you want us to do do you want us to tell the board to apply seven hundred and fourteen and test the st substantial evidence under sayers or do you want us to tell him to adjudicate this case under the old law to putting aside any possibility waiver because i know you didn't raise a lot of this of your group but let's just assume we're not going to find a waiver are you you spent most of the beginning of your argument talking about properly judging  and fourteen dollars but it seems to me that say or said for conduct that occurred prior to an act minutes of them fourteen it can't be applied so aren't you asking us to tell the administrative judge to apply that rule for conduct that occurred two prior to an accident which is all of the relevant conduct of mr erickson i think seven hundred and fourteen dollars can't be applied at all not to apply it under the correct law because it seems to me to be an open question and terrorists and then decide whether the administrative judge can kind of sue a sponsor a convert to a chapter seventy five dollars action or whether it has to go back to the agency in the  should consider remand with instructions for the ministry of judge to consider the ask ability of sayers and the retroactivity issue my view on how that should go is instead of converting it to some additional proceeding or trying to trying to apply the old standard using the record that had it before the ministry a judge the administrative judge should remand for for some sort of an assessment under that is our position if if the court does not find waiver we don't think the court should find a waiver because the proper resolution here is beyond doubt there's no dispute that the only sustained charge occurred a couple of weeks prior to the  when the proceeding started he may have been represented but by the time very shortly thereafter and certainly by the time of trial he was proceeding pro se where the moment he was represented or for the agency but but was mentioned earlier whether or not it would be proper for the board to consider the pre seven hundred and fourteen dollars standard based on the facts that are already in the record assuming that it could not do that then yes it would have to go back to the agency for further consideration of that precept fourteen standard do you have any support for the have a higher pondering standard of proof that the board and its penalty is going to be assessed under the douglas factors rather than the much more deferential standards under some fourteen why wouldn't that caution against having the board decide this without getting case are that the the underlying conduct with regard to the taking of the photographs and the sending it to the authorized personnel is not in dispute  did lay out its position particularly with regard to the issue of the nature of the offense and as well as the nature of mr harrington's employment as a law enforcement officer and the fact that the the offense that was committed and how it related to that employment was what the agency used to select the penalty in the st place so yes that's correct that they would have to consider whether or not they could sustain that charge under the chapter seventy five standard however one other question given the fact that you agree that a minimum this has to go back for correct application of seven hundred and fourteen under say why should we hold the petitioner here to a waiver on the retroactivity what's the argument for for labor it seems to me since we're going to have to send it back anyway that we might as well to wreck the harrington's brief and early on in this case the government asked the court to stay the proceedings until sayers was resolved and mr harrington opposed that motion on the grounds that sayers would not resolve skates and prior to so that that motion came after the filing of mr harrington's opening brief but even prior to the filing of his brief the sayer's briefing and arguments had already concluded so i don't think i really you're not addressing my question you agree you agreed of judge newman's question earlier to assume that waiver that waiver did not apply and that sayers was in effect then yes the facts of this case line up i interrupt you a minute i think i hear what you're arguing and i i just want to make sure are you think that because say or turned on the waiver issue that the rest of it the opinion concerning whether or not you can reach reviewed the penalty determination is part of the substantial evidence for view picked up squarely before us in this case to to brief that issue as it pertains to this particular case and these facts as sayers came out following the briefing and that it wasn't raised decided for whatever reason to limit it to a waiver argument rather than address the merits of the sailors head on so why should we hold you to that that we have to remain in this case to the board because the board applied the wrong standard under seven  ok given that we've discussed the the issues concerning retroactivity and the waiver issue if there's no further questions from the to to find the retroactivity issue not waived and direct the board to consider that standard particularly given that the proper application of it is beyond doubt given asked mr harrington did not have any prior disciplinary record he was a federal employee for a federal police officer for twelve years and had what i understand to be a very good performance review so that there is reason to think that douglas factors analysis whether in the context of seven hundred and fourteen or in the context of chapter seventy five would have changed the result here without it if there are no further questions i will rest on that