unresolved cases against veterans even though they still contain information that had not yet been fully resolved as charged in the indictment yes that's correct and in fact  where we are back in july of two thousand and fifteen he had only been indicted on those fifty charges out of twenty seven hundred possibilities he was indicted on fifty two got a curiosity they tried to bring twenty seven hundred charges they did not know how many did they bring about fifty so he took a right wing and in a period of time his his division was given six days to close twenty seven hundred requests that had been left open for a period of three years not by his group which was not the non veterans excuse me then on veteran association care coordinator group but by another group he was detailed to that group without any experience and i asked to supervise five other employees who had absolutely no experience and during the process of processing twenty seven hundred allegedly there were fifty over which he had problems as far as the computerized information was concerned allegedly there were fifty people who did not receive outside console's did not receive any kind of offer of an outside counsel and did not have any kind of  completed or refused by the veterans when he knew the consul two were still pending unresolved that's what it said there was no process by which he could do that there's no process by which he could declare anything without the help  of the five people that work under him and without the authorization of the people that work over him judge moore in over one hundred thousand such cases that were disclosed in the scandal that broke in two thousand and fourteen around the time to this became an issue for mr henderson there has been one person in all of the veterans administration that has been charged with a crime and convicted of it and that is mr henderson he was taken out of his employment  by virtue of this indictment he was denied any kind of compensation that is any kind of ok by virtue of this action and as a result he has now  en out of work for over forty six of thirty six months who what about whatever happened with the veterans whose benefits claims he falsely closed or ordered closed for had closed based on the indictment what happened to them because these are men and women that served our country with distinction have medical problems that they claimed they were entitled to disability benefits for or medical  help for and he ordered that there according to the indictment i have to accept as true that he knew they had not received the consultations that they were entitled to and nonetheless ordered those cases to be closed against the better its best interests what about them what what happened to them have those cases been reopened to your knowledge and have the veterans gotten the medical treatment that they were entitled to before he did this they were never devout they were never denied any medical treatment that the question wasn't whether or not they were going to receive these consulates it was a matter of scheduling the consul's that was it was the total issue i thought that he close finder and i'm not supposed to look behind it you're telling me this indictment on its face is not good enough for me to accept that the government was able to suspend him indefinitely in light of that so what is the face of the indictment think you put your finger right on it the indictment says one thing the facts are completely different from my client as charged under the indictment he asked trying to figure out for himself what is going on one of the interesting things about the indictment if you look at it closely is twenty seven hundred people fifty of them he has to try to guess who they are there's no way for him to know and that did not become apparent to him until well after he was his ordered to do that and he passed that order along to the people that were working for him one of the things one of the scandals in this case is the fact that somehow the undersecretary gets away with telling people that will work under her you're going to close he's canceled within a period of time without her self ensuring that those terms on wh him but not because he didn't notice from the undersecretary he would he didn't work for the undersecretary in that respect he was assigned he was detail to that in the end the non veterans the indictment that explains that's the problem he gets an indictment that says look you were you did this between february and february the dates of february the six to seven where the eleventh of one year which is the time that he  was detailed over there to specifically for the purpose of closing those twenty seven hundred consulates and that's what the indictment sense and it is very confusing and that's one of the reasons we're here just because there is no way that anybody reading this indictment has any knowledge has any actual knowledge of what he or she might be charged with it's just not there we don't even have the names of the people that are involved we don't even have the people there that he was there our this is the argument that is being made to the eleventh circuit yes and it is also an argument that was made at trial to the trial judge but we're here today because he lost his arrest isn't enough and you rely on it but that's not what we have here you have to explain to me why i should say an indictment by a grand jury on fifty separate counts is like it's as speculative as an arrest do you understand what i'm trying to get out to in your case you've got to convince me that indictment which is not just a charm it is a grand jury has reviewed it and decided to move forward  the world of due process the grand jury doesn't hear from him at all the grand jury has no participation with the facts in an adversarial way they are presented the case in this event by the employer who is trying to blame henderson pure and simple this is this is the reason that due process exist for these kinds of situations he's supposed to have a due process to keep him getting paid during the period that's what the producer process is supposedly the urge to have due process to keep getting peeved during his suspension and so long as the suspension of what is the language of the regulation you know better than me something about you is not likely to result in imprisonment or something something what is the language i don't have it handy it is that there are three things that one of the i think they tell me that you're referring to is that there is a reasonable cause to believe that he would be convicted under the under the indictment itself it's very very confusing because it's all about what happened at work so the statute i'm sorry i found what i was referring to it's the statute is seventy five thirteen and it says at least thirty days advance notice unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be proposed so the question is does an indictment on the fifty pounds by the grand jury create a reasonable cause to believe the employee has committed a crime why doesn't it why isn't there reasonable cause in light of the indictment for two reasons and one is that in this case the reasonable cause is based on what the employer who is trying to get rid of him prior playing this on is proposing to the grand jury i mean that's all they hear from it's like having a pretty close of a fact of a case where you don't even have the opportunity in the case that the persian is based on you don't even have the opportunity to appear you don't have the opportunity to present your side of the case you don't have the opportunity even  what the matter is that is being presented against us and even after the indictment there is still nothing that he can look at in that indictment and say ok this is what i'm being accused  investigation or something else is merely an accusation that hasn't been proven or that it through any sort of verification by the agency and station i mean i just don't think police officers going around arresting people on accusations right i mean isn't there something more that usually in arrest requires probable cause i don't know something to believe that they actually did what they did and the just an allegation is  i'm just trying to understand why going to rest isn't enough but an indictment is because that's the only thing that this issue in this case is on and i can tell so i'm trying to understand what are the circumstances that cause an arrest to occur and we've concluded and we're bound by the law that the rest alone isn't enough what makes this different if you can't answer me the questions about criminal law i'll give you a pass on that but what you know what makes this different from those  on the indictment and providing the reasonable cause yes your honor it's exclusively the indictment not the underlying actions that supposedly supported the indictment does the indictment generally include evidence beyond what was included when the person was arrested because i'm trying to get at you know mr brown has raised the argument that his client had no opportunity to participate in the indictment no opportunity to see whatever evil whatever evidence is presented indictment is a much more powerful indicator of reasonable cause than an arrest well i believe i believe that the police officer in executing the arrest and and of course and in this case the arrest actually occurred after the indictment so i suppose it depends in part on whether it's a rest in connection with a as to a suspicion by the police officer who judges for himself whether or not he suspects somebody of a crime and then executes an aircraft and then there's a vetting process whether it's through arraignment or through a grand jury procedure to determine whether or not in fact the police officer was justified in making his decision and that's the stat that occurred with the grand jury in this case the prosecution brought charges to the grand jury the grand and i may be using the wrong terminology from criminal law because again they are not it not an expert by reasons position or a suspicion of a probable cause whatever the police officer believes he or she possesses he is also executing that action of perpetuating the arrest where as with the grand jury one individual the prosecutor is coming in to to state i believe i have probable cause and then that the grand jury is that and deciding that so there is it's not just a matter of a third party separate from the employing agency but it's a third party coming through and stating i believe there is probable cause and an independent arm agreeing with that and and which have a nexus to the employment and here the alleged crime was that he committed he he committed criminal acts in the course of his employment recruited other supervisee that he was a government employee at that time that did occur later it's not part of the record in this case but mr henderson had he been acquitted of his crime had the prosecution dropped the charges and not followed through with the indictment would had the opportunity to come back to the agency and would have been able to seek back pay under the back pay act so it is misleading to to state as counsel has that he he lost his job and he was taken out of employment as a soli as a result of this indictment mr henderson's due process arguments appear to rest on the fact that he was entitled to prove his innocence before he was suspended but that the agency is simply not equipped or authorized to make that determination in and of itself and that the requirements for due process were for him to receive notice of the charge against him which was that he was going to be indefinitely terminated with that or it definitely suspended without pay  pending his criminal proceedings to an explanation of the basis for the theist decision which was the fact of the indictment itself and three an opportunity to present his side which he was afford in which he took it this is very much inside but you have any idea  that the twenty seven hundred pieces and all the ones in particular that were identified as he says were he closed them contrary to transmit cool opportunities needs i don't know how to frame  know it's not relevant and yeah i get it but mr henderson also tries to create some sort of exception to the rules and and the other case law that it cited in our brief by arguing that somehow that the grand jury was the cat's paw of the v a because the agency presented all of the arguments to the grand jury presented all of the evidence to the grand jury on this record that there is no evidence that that actually occurred number one and number two it's irrelevant to the v a s actual basis for spending mr henderson which was the fact of the indictment supported in the case unless the panel you first let me say that it is a fact that the referral did go back through the system automatically they absolutely did that back to you and even a trial some of those people that actually see the people that they w for you had asked very interesting question about an arrest and what's the difference and the difference that council came up with is that there is some sort of third party intervening in the arrest a process there is not some third party intervening and i would point out that in this case the complainant in this case was the agency they were the ones that sought the indictment and they were the ones that presented the evidence to the grand jury so without anybody there representing mr henderson's side it's the same thing it's the same practical of fact use an arrest warrant on which you're going to come i guess one difference is the rest is a single officer it's credi may be you may be in a police department where you have a structure of hierarchy that reviews that process if all you hear from is the arresting officer and the complainant it's not good enough and all i'm saying is that in this case that can't be due process if you don't have an opportunity to present your side up if you don't have the notice of what you're being charged with then i don't think there is any law and lot of millwood cited for the court in the brief a lot of