here no i believe you are the timing is they were there to bankruptcy petitions issued this case the first was in two thousand and five which mr brown received notice had been discontinued in two thousand and six your i will try to find that in the appendix we believe that even if that is the case the write the letter did open the door to the information that the agency was looking for among other thing filed the question or the mitigating factors that they would have looked at is whether or not the employees taking steps to alleviate will resolve the concerns those steps are i'm reproduced on j one thirty two so it's the mitigating factor that would have been addressed even if that fishing had for bankruptcy had not been final is that the individual initiated in good faith effort to repay overdue creditors or otherwise result debts and this case that's exactly what mr brown did and we understand that there may be that the that the brightfield letter would have certainly have been but i think what the evidence shows is that it directly was responsive to the concerns raised in the us or it was evidence of the employee of the petitioner trying to resolve an a it's clear in addition to the d o d regulation that c eight point two point two point one point one that there was an obligation to assist and if you look at the record knew as the security specialist but the bright the letter was responsive he knew that mr brown intended to respond to the s o r and there's no explanation for why having had the right the letter for weeks he we can't consider this as a response because you sign at a minimum to do that and it's really inexplicable why he did not they didn't call him to testify he had left the agency and you have the new security specialist mr certainly would have done that and in the in the breach he would have forwarded that information even if he didn't think it was a response to the us or because he conceded but that was not his decision to make ability to appeal the letter of denial that he received internally i understand your argument that they had a duty to assist to the extent that they should have called mr brown and told him we've got this letter do you know anything about him it's harder for me to accept the proposition that if i'm in a proceeding and some random person submitted a letter reporting to be on my behalf that the correct way to do it was that they should have forwarded that on that c detrimental to employees if people in the organization are forwarding on material that the employee hasn't signed or even know about right so imo i'm going a little trouble with your suggesting it in certain respects it might not be helpful to the employe might be detrimental and the employee ought to at least have the right to see it so i'm a little troubled by your suggestion that there was an obligation on the agency to just forward the letter that may be possible but that is not the case here mr brown had respond he said he was going to respond but if you look at him a letter it's very clear under the circumstances here the agency not only had a duty to assist they should have known that that's with it least that this was an attempt to satisfy that feel free to contact me if you have any questions certainly if there was a question they could have called him and said who are you if you know that were the case who are you we don't ordinarily forward this information to the w h s cat they easily could have called mr brown who was there in the facility this would have been a five minute conversation that would have given him the opportunity to perfect the state the response to stabler reasons it would have entailed it would have preserved his appeal rights and it would have put the fact that ultimately his debts are discharged ultimately he does address and takes very responsible ten steps to address the agenc concerns or you also think that regardless of the write the letter and whether that should have been a red flag that that the p l c would have at least had an obligation to from the testimony of mr coe now you see it in the regulation that we cannot deny and i know the government points out mr brown signed a statement of reasons he signed the paperwork and we don't we've never disputed that what that people work s but in context on the facts here mr lancaster had a duty the agency had a duty to at a minimum inquire and that would have me if huge difference both in the resolution mr brown's eligibility and his procedural rights with respect to the w can i just have this things went down when he was called not before but after the deadline passed right correct ok so i guess you have a problem with that but europe because just about had a conversation with mr lancaster in that conversation which he testifies about i do believe there was a statement or there was discussion of i think there was a mistake here i will include a response and that's true and that's repeated in mr brown's ultimate reply to the notice of proposed removal so what is your position that they ought to consider the write the letter that they  consider the information he provided like the procedural error that we believe mr brown was harmed by it is the agency's failure to inquire after receiving the bright the letter when he's provided his late submission to ask them to consider he doesn't riffraff and the letter so even if they have accepted this is timely it wouldn't necessarily cover the write the letter right but that still wouldn't cure the procedural error and looking out after the fact parsing down whether or not he could have submitted another later response that he after he had been past the deadline and not notified that the right the letter would was not forwarded or deemed insufficient by mr lancaster which we have to presume he looked back and looking back at it wouldn't have changed it what he didn't try to put forth at that time was the response to the allegations but  ceramic provided with very explicit instructions about how to respond to the statement of reasons the letter of instructions in it was two pages and in three separate paragraph on those two pages he was as to how to respond and those instructions did tell him that he had to respond in something that was signed personally by him and they did and he didn't follow those instructions that's their duty and then the duty is to pass on an actual response mr karner emphatically says this was not a response and it wasn't it wasn't signed and dated by mr brown in accordance with the instructions and only made it puts probably me about this case as i understand the rules and rules were clear and that is that if they gets when we personally messam think up a cent something to the wrong address or don't sign it typically what happens is it's rolled over you get it back telling you this is improper we can't accept it because you didn't it's doesn't comply with this and normally that gives you sufficient time to fix your mistake and proceed so except for the duty to assist i don't really know how broad or mirror that is but it seems to me the normal practices if someone submit something and it's an adequate you should do something with it like send it back to him so that that can be said something cured well in this latest answer didn't testify but the time had not run out so he was waiting he was waiting for mr brown to understands the instructions and forward something that does constitute a response not to judge it not to respond to him but to take anything that into vides and he was waiting that could have been part of a response it was something that came in and had been su there was rejected to send back to him it was just he was waiting for more information either mr brown or brister bright knew that it was not accepted why would they have done it i mean i understand the logic of what you're saying but it requires mr lancaster picking up the lancaster finally did call mr brown didn't he suggest that mr brown submit a response and apologize for his tardiness and move forward with that so he obviously thought that even a tar obviously had some expectation that even the even to late filing under these circumstances might well be considered right again i can't say that that was the expectation that may have been a hope it may have been just this a hail mary suggestion it's late but you know what maybe to explain that likely it can't hurt so mr brown said i admit this is late he didn't refer to the right bill letter he didn't say i tried to respond finally he said this is late i was trying to gather information and i hope you can tell what's the procedure or the regulations that deal with brown had software extension and he had been granted one extension however he never sought another extension even though his letter of his party letter says i am late because i was looking for more information he never sought another extension to get that information together why is it what would be what would have been the prejudice to the agency from allowing at that technical reply to go forward and saying the agency supports this and let me give you three responses to that hard because and it's directly addressing or of their reasons for saying to satisfy the security reports but to show harm mr brown has to demonstrate that the agency would have reached a different decision on the adverse  action which was the removal action in order for them to reach have likely reached a different result on that the agency the adjudicating facility would likely have had to come to a different decision on the  said because of all these debts and because he hasn't filed for bankruptcy and we see nothing in the record to indicate that he's tried to overcome these financial difficulties we have denied him the clearance would we have jurisdiction to look at that decision that said we are affirming or we're denying his clearance because of the following and we conclude that there was here in that when you say we can't review what they've said we're not second adjudicating authority says we are denying this because he never filed anything he didn't even try to file anything and we conclude based on the record that that was wrong and in fact he did try to find filing with it and we know that was the educated facility to at least consider the actual facts the court can look at that the court can look at whether you think they look at whether they have to consider i'm saying the harm is just not giving them the opportunity to look at no the harm has to go through the agency likely would have reached a different result on the removal action itself and that would only have happened if we had a difference a different decision on the eligibility which could have happened if they appealed it but could is not likely to and for the courts enquire into harmful procedural error so we have to be able to answer the question here as to whether what the change in the outcome is that yes that is why i am saying your honor but i do still believe that well first of all romero is still good law it is on all fours with what we're arguing here and this court does have jurisdiction to consider whether the agency followed its own procedures that concession was made  understand they're separate even if we find that the agency didn't comply with its own rules or whatever we still have to establish that there was harmful procedural error in terms of the error that was committed by the agency correct and we believe that that's on this record shown that that is likely exactly what happened if you look at for one thing the loss of his appeal rights that's a very persuasive we believe factor the question is whether or not it's likely that he would prevail that goes back to one of our other arguments which is we shouldn't forget that even in conyers or narrow exceptions no question is it is it's true right that you would your argument would have to be that he would be likely to prevail if he had had the right we certainly believe he would be it would have been likely to prevail that's correct and that's the remedy here would be it remained back to the agency the decision the final decision would go back to the agency because this is a procedural error it's not a merits or it's not a partial answer i have to come forth confess i don't have in the appendix or in the record the date of the specific date of the second filing of bankruptcy however with respect to what was attached to mr bright those march letter on j one forty eight mr brown explains in his reply that it was another letter with another copy of his creditors which were listed on his bankruptcy petition and so it was responsive to the agency's criteria he was attempting to address the concerns that the agency raised in the  are just because they have very little time left with respect to the due process argument again conyers and northover and even whether they whether conyers was an expansion whether it was a cation the heart of those cases now as they are the law is that it is the merits or the substance of the agency's security determination which a non expert third party is not equipped or does not have jurisdiction to consider but requiring the agency to simply have a deciding official with the authority to make that determination does not look to what the agency's actual merits substantive analysis is and it is also consistent with the agency's own policy which says in each case must be judge and i meant for zero seven in the appendix on its own merits and final determination remains the responsibility of the specific department or agency and this case that was the facts and so requiring a deciding official who could have in fact changed