penalty was excessive number one is the comparison between what news derek received as action in the shelley when she was judged based upon the i so really doesn't make any difference whether the seconds there are charges or to see i would not disagree with that i would just say it's number one the first of four charges are legally insufficient and number two what i was to get to in this second argument of mine is that the arguments of the deciding official are abjectly unsupported by fact the deciding officials arguments or basically his potentials regarding the twelve douglas factors are set forth in the record of pages three seventy nine and three eighty three i would respectfully submit that they are just arguments and with respect to a number of those arguments they considered factors that were neither charges nor allegations in the proposal notice and this court has said in all keys you upon claims that mr christie supported written statements the administrative judge of the merits of this protection board said that plame was assisting second under back to number one the deciding official said that mr misstated this when she said she never considered the g s nine salary or position for danny garcia that is not listed anywhere in the notice of problems not involved so that is the due process resources for personal gain again no where is that alleged at the specification or charge in the proposal notice due process violation of number two does the fourth douglas factor in the notice opposed at all third due process violation what's the use where the deciding that official gives these allegations are from the i g report the agency decided in proposing her removal not to base the proposed removal on those allegations that insider official was not deterred he used them anyway in deciding upon removal as the penalty but there were other near the fifth factor i cannot trust this employee primarily because she lied under oath again the agency in responding to discovery as we know that that any misstatement was intentional so they're on record as saying no intentional misstatements also factor number six regarding the consistency of the penalty  violation again we're talking about conduct that was not taken to leave him improper we're not talking about lives we're not talking about bob kerrey or anything of that nature we're talking about comments basically two people during an interview and it's clear that mistery never received anything points over a period of twelve years of doing this no place whatsoever number one and number two when there was a complaint not in an interview process but during a hospital visit there was a complaint by the individual in the hospital after a mysterious visit to a military member of the command working outside a limited duty most of them have to work limited duties in connection with it or viewing them there are questions that are out there are written questions and this is a turning point there are written questions that actually individuals among other things barracks question of you don't have to you don't have to depend upon a man the navy will take care of me or you know you really i'm sorry you got yourself into this situation of being president without alleges if they allege it's improper ok fine it's improper to tell her don't do that anymore and there's nothing in the record to indicate she would not have stuck nothing at all in the record to indicate she would not have stu we made was that there was a due process violations within abusing the new image and i was dismayed when nor sitting down a few months ago that just in your line of neurons was left of that order i would argue that upon that particular argument on that particular argument i would still said i don't know whether exceptions were raised in or still considered i know from the decision this is the essential case saying that federal sector permits it or a permanent employee of the federal government is a title of a due process in charges in the evidence is to give the employer the opportunity to civic for already but this information should be provided to the employer before and after also in and agency can produce additional evidence after that could never be judge because once it became a speedy the appeal is filed the employer can then amass all of this other evidence and prevail on the image of t v appeal possible whereas the employee has not there is not clear evidence in the record that it would not support their removal however the deciding official did state that needs staring hostile and racist comments were so severe that they are  also commented on page three eighty two of the joint appendix that her comments towards those were so deeply embarrassing to the command that the agency cannot read their reoccurrence so it is possible that not say necessarily whether when the charge is a hostile work environment title seven must become five with but in this instance it's clear that the agency was not referring to title seven but that the agency was merely attempting to describe the type of conduct that affected this fish n c s survey and that agency proved each of the elements of the conduct described under that charge and administrative judge found that ms sherrod didn't gaijin that conduct and that that did harm that efficiency of service where there is evidence in the record that shows that these decision that there were numerous individuals who found her comments and her behavior hostile and if you said and made upon that and then considering miscarriage explanation that it was part of her job the ministry of judge waived that and found that in fact those types of questions and comments were not necessary for her job and in fact one of the prevailing regulations that was on notice on page forty one of the record page two fifty eight of the record one of the instructions from the agency is that pregnant service women shall not be subjected to harassment or imposition of personal opinion and that was just one of the governing instructions that should have put ms sarah on notice that her behavior was inappropriate and given that it was not necessary to do her job she should not have been engaging  on page three twenty eight of the record mr morgan her supervisor explicitly said that mr it is not authorized to counsel sailors on their personal lives or their military careers and as mr counsel part of her job did not need to make one individually meet with these pregnant sailors did not need the counseling then and the fact that she specifically sought out to meet with each pregnant sailor counsel then went beyond counseling and started imposing n her response to the agency's anaerobic tory on eight sixty one she basically denies that she intentionally she made those statements on whether she didn't do it correct and the board found that she did provide those statements intentionally the board set forth the proper standards and so you run through your will the government did acknowledge in a written declaration under oath that it had provided an incorrect response in that manner in the proceedings below there's not an attorney that's representing the agency is just an agency representative and charges for the board found that it was that it was improved by a preponderance of the evidence and that charge effectively ms jarrett had taken a number of steps to initiate the hiring process to hire mr garcia fara and then when she learned that he had written and negative statement about her basically just critical of her professional behavior in alleging her time and attendance violations and found on page two eighty three of the appendix she told mr garciaparra well we're trying to hire you but now you know you just can't be trusted some page seven twelve of the record and she went on to basically over a period of time ask for ask mr garciaparra to rescind his unfavorable statement about her and write a statement saying either she wrote that under duress or to write something positive in her favor and she also told him at one point on page seventeen of the record i need your statement so that i can get mr morgan out of the picture and get you hired and so peaceably what the agency was demonstrating under charge for which was misuse of her position as a supervisor was that mr it was clearly using the potential of this job to get m unfavorable statement and say he had written it under duress or write something just generally in her favor and the record is also just replete with there was a new numerous interactions between mr mysterious and others discussing this job and indicating he indicated that he thought he was told he was definitely going to have a job that mr had promised him a full time civil division stuff on page seventy six and seven and seven the record and then when he came back from leave just a few weeks later ms steria had made this comment to him and find that he would no longer be hired because he c not be trusted because of these well the does factors were appropriately evaluated first of all mr chips is only citing from the cyan fishel checklist that was submitted before the board but the court should also consider one hundred of the record that the decision on the proposed removal and that the agency considered one of the series of mysterious conduct in relation to the fact that she held a supervisory position and the fact that she did well that supervisory position is one factor that may warrant a more severe penalty for her actions also very significant in the desert factors was that the command had lost confidence and trust and her ability to perform her full range of duties and did not feel like she was on it or had integrity and which was a very important part of her job because she was the face of the command she was one of the first people that these sailors and their coming off the boat or even these new assignments were meeting way and she had to interact with a very high level of the to these sailors into different positions and so her integrity and honesty was he importance then they properly considered as mitigating factors miscarriage length of service her good work performance and her lack of prior discipline but on balance weighing the aggravating and mitigating factors concluded that removal was was necessary and i'm more interested mr tooke to be s three eighty eight three but say for instance with regard to number seven reviewed agencies guidelines i think clearly did a review that you see guidelines and  well with regard to this we also have to consider that there were specifications not not that i think this if we point out i don't i don't believe so i mean there are specifications that weren't upheld by the board so with regard to some of these statements i may have to parse that you know whether  semantics that he he put offered a government position for a favorable statement so can't trust employee because we left because she lied under oath that's number five in my time is fiestas of the post you are required under douglas to set forth the reasons why you chose this punishment it's essential and especially with respect to remove and as i've listed there were at least four or three there were three considerations of matters that were not in the notice that the due process by which of those  under factor number one the allegation that mr misstated the truth which she said she'd ever considered g s nine salary or position of the data guard garciaparra that's it page three seventy nine of the  there's no doubt there's no specification or claim in the notice concerning that also in fact afford page three eighty the decision maker said alleges that mysterious use government for personal gain there's no charge or specification in the nose to propose a removal for that also at page three eighty the deciding official said mr offered a government position in exchange for a written statement favorable to her there is no charge or specification in the notice concerning that and the deciding official has admitted in this  he considered these things among others as considerations for removing misteries and under oath he if you consider something not in the notice as a is the fact that the reason things stopped was because the supervisor this to morgan came to the conclusion that he could not offer the military member mr garciaparra a permanent position he could only offer a temporary position that's not mentioned anywhere else in the gym s p v this presumption is that ms stair stopped the process because she got an adverse state