good morning your honor sir morrissey fisher the talent here mr webb think there's two key documents that the court should look to in deciding this case one of them is the proposal to remove which is one twenty four of the record of the appendix which basically states your conduct in submitting falsified documents to receive compensation while on the periodicals on question leon acceptable meaning the reason that you are terminated mr webb is because you submitted false documents and the reason you did that was to receive compensation form of the ca form and itself that there's lots of reasons that the postal service would want to know why somebody was working raising cattle doing whatever you know perhaps if they were good enough to do that they could've gone ahead and deliver mail at the should of but that wasn't what the charge was the charge was did you do what the son of this cases did you receive compensation while you were why you had your injury and did you find submit these false documents in order to do that and the weight of the evidence here is that he didn't and in the reason that he didn't is because the only thing that the administrative judge points to is a game that he had and when you're thirty seven seventeen you're theory is that it can't be material that's right if he would have gotten the compensation even if he'd made an accurate disclosure right that's right it's not material and if you look at the tax returns the there's no allegation here that the tax return was falsified that that you know we don't believe you that you really took a loss for the year two thousand and five two thousand and six the allegation here is that for that period of time on the ca form you should have disclosed that you that you sold some cattle and you made thirty seven hundred seventeen dollars and my client had a good argument which the judge didn't really address at the lower level which is is that called income is that do i know that that's been called when overall i take a loss for the year how do we know that the compensations unaffected by gross receipts from business how do we know that how do we know that has to be a net profit i think what's what's critical here is honest tax returns them up which are so what you're saying that is workman's compensation or whatever it was would have been unaffected by the disclosure of this farming income what's the basis for that where does the regulation say that it doesn't make any difference that you gross and as opposed to net and we only concern with net and we're how do we know that i don't know that we do know that i don't think that in his answer he says that he had this money the selling the and house and deep beneath this there is not anything at this hearing but certainly that's been presented here him reporting that that's that's what we don't have in this case we don't have anything from the government that shows she got a benefit one way or the other by reporting this or not that that's where i think that the government's as a business or income from farming to be reported and once it was amended the the specifically cover it did so well that that's an argument as well i mean that that's certainly true i mean that it that it looks like that that is exactly what he did so that you know i think that even with with his intent with it you know because that's what this case boils down to that there's first family when i was with the second the board held that because there was no difference in the amount that he would have gotten anyway the which that which that they had the burden of showing they didn't show that so he said i'm a former he says he says he didn't consider it to be a business enterprise and probably thinking is because he says he took a loss he didn't he didn't really do it for business and a person is not a bank comes down to me in the case that the manager could have been charged with you filled out a form flatly or this was inappropriate conduct or whatever the story was this might be a very different case the narrow you that the court is looking into today is did this person do this for financial gain as it says that's what he had the estimate lee defended his proposal to remove so i'd just think with these judiciary reviews it's not like an issue where the border can go back and see what really should have kept on this issue the government didn't sustain  work outside of your federal employment during the period for which are claiming benefits and then it goes on to even pride to dish no instructions in one of three before forms that he filled out it told him that he should even listing such as self employment volunteer at cetera and the other form it said that he should list anything that had to do with business enterprises or anything to which he received any payment of any kind not necessarily net income or net profit the answer to that question is important immaterial longer be totally disabled for work and might possibly be able to go back to work in some capacity that's what the purpose of this question is by answering no mr effectively answering no when mr webb knew that he owned and operated a one necessarily honor but in this instance it was not merely a hobby this is something that not only was he out performing work but if he believed it was a hobby if he believed it was a hobby that might make a the intent however here the a j determined that of which was his demeanor base and demeanor at the hearing a j found that that wasn't credible that she simply did not believe him when he said he thought it was merely a hobby part of which likely came from his tax returns not the fact that he ultimately lost income in the end but the fact that he said he was materially participating in a business it's awfully hard to say that something is merely a hobby when you're then reporting it is business income and again the reason that his answer was material here is not to make a difference on tax reform and reforms of  hobby as opposed to a business i mean so have to report the income would you put out there i don't think you would use the far b form i'm not an expert on tax law so i can't speak to that specifically but my suspicion would be you would be using a different  checks off these materially participating in what was called the business and again the reason his answer is material is not based upon whether he's losing or gaining income in the end in fact the cia seven that he and that he was responding to didn't have any line provide for providing income at all it just told him to list the work not necessarily your honor i mean i could not speak for us to which lines on the cia seven department of labor would think are not material but perhaps if you made a mistake applied false information with regard to something like your telephone number that would not be material the and the reason it isn't is materials because the entire purpose of question three is to let department of labor know whether it should be conducting a follow on investigation to find out the individual still totally disabled for work by answering that question falsely in any way it's preventing department of labor from doing the job and going out and conducting the investigation by answering no to that question when as he a j found mr webb knew that he was performing work involved with the business etc that information and prevented department of labor from doing its job done thereby eliminating any risk that he would lose his benefits he is his goal was to keep on getting compensation and by not indicating it it would keep department of labor from doing information combined with the lack of any credible explanation they found that there was no credible explanation here for a variety of reasons including his demeanor at the hearing which the age it described as of someone struggling to provide a plausible explanation for failing to report that he had been self employed when he clearly understood that he had been self employed as a farm operator a j merely confirm the evidence of lack of credible explanation that we ourselves had gathered through our worthy of note if that's interesting bring on our i think one in one thing about that is that he's not it's not exactly accurate that he promptly changed his answer otoh b c p regulations provide for a way an individual if they realize that there's a mistake and one of the forms they submitted can get that changed that that false information corrected he never went back and sought to have his original ca seven altered in any way rather he received a separate deal form called the ten thirty two something sent to all individuals disabled employees on the rolls once a year he received that form in it he was asked a differently worded question with different worded instructions and he responded there that farming was a part of well first of all the regulations are public record and he could have gone to the internet for example to find them or anywhere else but the new form wasn't meant to change the old form it wasn't just a new version of the cia seven it was clear who was much clearer had argued that he didn't have the intent to deceive here and offered up many reasons why he didn't think he had the intention seemed to and had argued that this leader disclosure showed that he didn't have the intent to  at the time that he submitted the ca sevens in the first place a j took that in all of the explanations that he put into evidence and found that overall nothing of what he had to say took away from her the fact that he was a mistake made in the first place and again here a j determined that there was no mistake but in fact he had you know exactly what he was doing when he answered the ca sevens in the first place so even if there was just closure later there wasn't that mistake compelling that there was no finding that there was no intent to deceive it will be one of the things that the administrative judge could take into consideration in rendering a determination of credibility on this and looking at the totality of the basis for overturning them at turning to penalty your honour's unless you have any further questions about the other elements there are only two permissible basis for overturning the penalty upheld by the board if the postal service failed to consider relevant douglas after or if the penalty exceeded the bounds of recent illness here although mr webb has argued that the factors somehow should have been weighed differently there's been no argument that any of the factors were not considered in the first supervisor who had worked for the postal service for ten years risen to the level of supervisor and no prior disciplinary history and one day submitted a false sickleave claim saying that she was out that one day home  in title part a employment employment form which instructed him to report farming income and he did so you say that after completing the employment i was just some rude honest man words that deal with the aging and pages i'm page seven indicates that there are a number of reasons that he provided including that whine and on page seven turns to saying considering the totality of the circumstances and the apparent parents buried explanations for not reporting his during his testimony was that of someone struggling to provide a possible explanation for failing to report that he had been self employed when clearly he understood that he had been self employed as a farm operator and again really talking about  was aware of it but she didn't put it in a separate line dealing that's part of the credibility to terminations but nonetheless determine the even being aware that that was one of the explanations he had provided looking at the totality of the circumstances on balance she found that the evidence way towards a finding of int questions if you have any further questions i'd be happy to answer them otherwise i  sir for the majority of the ten minutes of my adversary or fifteen minutes my adversary used to think we just heard a summary of my argument which is my adversaries case in argument would be very very good you know she said things like the filler to fill this form out keeps the department from doing its investigation or that though this man could have gone to the internet to find out whether it could have done that or matt that's not the issue in this case this case is not about any kind of charge this man with that they could have explained proposal to remove here's the problem with this mr webb we think that when you don't fill this out correctly the reason you're not too mad is because attorney at the at the administrative trial conducted the hearing and how he prepared for it it's not really fair to the guy that now we're going to say well you know all of the you didn't fill it out here's the reason here's the thing that  that that the that you cause the damage here and also leads to the douglas factor which my adversary touched on is that it's not exactly true that these things are are not viewable that the court doesn't look to as it says in the brown case the appellant's past disciplinary record or the effect on the defense of the opponent's ability to perform on a satisfactory level and explaining why a lesser penalty you know wouldn't bend and effective which they don't do any of this it's that the bottom line here is this is not like a strict liability type of thing where like if you're carrying dynamite in your car you know  we carefully word what your intent was the blood was up you're liable you know it's not like you just filled out the form the government had this obligation and had the burden the film to prove by preponderance that he did this for game as he was charged with on the proposal to move forward the financial game for income and it only thing that they had was this three thousand dollar sale of cattle for one year and seventeen hundred for the