have thought after your last opinion he would get a hearing and the issue of whether or not we were fraudulent to stand here and agreement would have been addressed the problem with this case is you this is evident the briefs which spend a long time talking about the underlying courts don't make factual records they decide issues of law and the fact that we're trading back and forth what these facts mean is the best illustration for this court as to why we should be able to get a hearing on this issue we produced sufficient evidence to establish at least the right to challenge the contract as being an issue of for off without being able to develop an actual factual record how can we produce clear and convincing evidence of fraud when w produce from the things we did give to the m s p be here is what we did produce we produced an indication that undisclosed contacts by supervisors that word were given were made to have ploy or after that employment made the offer we were told there was a waiver there's been no proof of the waiver it's not produced in any evidence not produced in any document we were also produced in the district court case evidence that the very supervisor the talked to the agency michael dug out of one of the misrepresented to the court his contact he got up under oath and denied he ever did it kathy horsley the subsequent person who was hiring mr armstrong who is herself an inspector general testified under oath and produced contemporaneous notes that she in fact did contact had contacts with him where he said if i tell you not to hire this gentleman he'll sue me well that's what we did what happened on the remains you didn't get or hear what was i think they said we were timely they said that well we tiley brought this to their attention but based on our prior decision this really no fraud here what do you mean they said you you make submissions  had no more information that was gathered after the matter because there were no more facts right well they couldn't be established because we have no thought the reason we were able to establish new facts because we had a federal lawsuit where over agency objection judge robinson allowed us limited inquiry into the agency's conduct but now all that was before the m s b bit that materials those materials were yes before the m s p bay ok but what the m s did not decide was the issue of they didn't really address the issue of what constitutes fraudulent inducement and how the evidence in this case wouldn't establish some sort of frauds and inducement either active or constructive and the government's argument reflects that they say well they focus on the request well the attorney for the government said well she didn't know as we just saw what the court says the government speaks to its attorneys and agents what lori cresswell knew individually is irrelevant it would only show even a more heinous fraud if she actually knew those facts and didn't disclose them but the fact that the agency had made these contacts to its senior officials and that undermined the entire value of a settlement agreement that was hard fought negotiated remember the settlement agreement the agency it mid that they would impose a penalty of thirty days and that they had no objection of him as a law enforcement agent moving on to another agency so when this agency comes out announce talks about the egregiousness of mr armstrong's conduct march of two thousand and seven he was given the job offer in july he gave notice of his departure the six letters went out in august the day two days after the six latest went out we as required by law gave notice in response to him making a demand of the f t c in the privacy act that was never disclosed to us and had we known of those facts i guarantee you mr armstrong would have never entered that settlement agreement now all of these facts were the tally the circumstances in a fraud case are i have to prove by clear and convincing evidence that but for this map we would not into the settlement agreement the whole purpose of the relief was to allow him to go work with the u again he had been given an actual job offer this was in the private sector and we tried to raise this but because it can't be raised on the federal proclaims act that this was in the private sector this would have been intentional interference with employment because agency officials would have gone outside the scope and contacted or have been in contact with this person telling them not to hire him when the agency itself and if you look at miss cresswell it's only e mails says in the in the on the february fifteenth which is a page eighty six she's talking about the fact that i have stated the only information that was conveyed by the u s to the u s d a by agency management officials concerning the proposal a decision memorandum and any disciplinary action is no comment now that's significant because they keep going that armstrong should have disclosed he was under investigation went on strike seven plant he wasn't under investigation the criminal investigation they brought against him was dismissed the day it was brought to the u s attorney's office he was cleared and that's what he told his hors the only information he had about a proposed action was when they issued the proposed action and that was well after september of two thousand and seven this hoarsely never asked mr mr armstrong hold so the government's factual predicate and its timeline is incorrect the reason that this is the reason that that categorically didn't offer my client a job really is an issue of damages it doesn't go to the underlying fraud the question for the court is when an agency through its agents acts in a manner that's contrary to agreement they entered when it fails this close contact and those contacts of material and relevant and the lack of disclosure is relied upon by the party is that fraudulent inducement because if it is fraudulent use but no merge it was their contractual language or plots once there is fraud in the inducement the contract ceases to exist because the parties can't come to a meeting of the minds and the reality of the situation is fairly clear we were duped and i think the court was on the right track when it brought that up in houston we would do it now if you look at miss miss cresswell as email assuming we accept the government's argument it's hardly a situation of clarity that has nothing to do with post december contacts that has to do with contacts in august and the agency led us to believe that their only comment was no comment and the specific thing we argued for is we are concerned that if the agency is informed of any negative information other than what we agreed to they were send this job offer and we were told this was the official response and that was actually implemented in the underlying settlement agreement so how can the agency stand here and argue that this is not a material fact it goes to the core of the agreement itself and how can the board not understand that in my supposed to cross examine my opposing counsel and pin her down on that i don't know about how would i know about contacts that his supervisor held a waiver which the waiver because talking about a waiver it's a written document there's no waiver present in this record and we want to contest that we want to contest with these people did they s the opportunity to depose them to get information really that was in a privacy act suit under certain restrictive positions something else the agency doesn't tell you about how we found out about this and the board doesn't tell you about our front of us we would've found out about it if we didn't have a privacy act suit and over the objection we had an compel them to produce this evidence and they let it slip out on the side one other issue i want to get to before we finish up because most of this is in my brief let's go to the memorandum of interview that they rely upon which is a says well the reason our agents went to talk to the two miss horsley was because we're conducting an investigation into let's if that's true a judge is i ask you to look at this document and find out where anybody's request the anything about any let us because what they're talking about is whether hermie armstrong is candid up to this agency laid down a barrage against us and it's doing basically what it does what it did was it led us to believe that my client if you accepted a thirty day suspension could go and sin no more with the united states department of agriculture and then it took under took every possible step because it to make sure that couldn't happen and it didn't bother to tell us about it now in the real world where attorneys negotiated settlement agreements in the real world with plaintiffs actually bring cases we rely upon the word of the other counsel rely on them because that's what we're supposed to do as professionals there is an actual ethical thing that requires us to be candid to one another and to the tribunals and the other thing that happens that we rely upon is in the settlement agreement we rely upon if the relief is go to another agency and we support their position that my client wasn't hired because of what harry armstrong set and the reason is because he got hired then the letters went in then these contacts went in and then the then they the thing was placed on hold the ult reason that was presented to the board for why he wasn't hired was witness horsley testified and to deposition he was to reputational damage by all of this material for me to offer him a position as a law enforcement agent so the underlying allegations didn't even matter to me anymore in other words the shotgun letters and the disclosures by the representatives that's what torpedoed this man's job opportunities i think it stretches credulity for the for the board to ignore the opportunity to get some justice here mr if anything else we just deserve to know whether or not we will light so mr armstrong deserve that every federal employee deserves that and every lawyer and gauging in the settlement discussion deserves that otherwise i have to sit there and parse out through language what they're really saying and that's not how settlements are going to be addressed in the in the real world finally let me just say this  of the privacy act case a federal employee comes out says all i learned this ok and and so the res ipsa loquitur for the privacy act case because out the window and now we have to pursue the individual employee for the disclosures on the settlement agreement where we think he's going to another place we're told actually there were all these contacts and we told them well after the fact and well after the settlement is entered into even though they were known beforehand then we're told as we come into court here that we have no proof of fraud even though we're pretty pretty used the actual testimony of the deputy inspector general for an agency that's contradicted by the inspector general for another agency and we have the testimony of a lawyer who was fumbling to tell us why she didn't tell us about this material why can't we get a hearing on this now when they ask for some relief on this because mr armstrong shouldn't have anything goes more than thirty they suspension if if the settlement agreement he should go back to be an employee may should have to reset the clock the bottom line of this for the court and i have forty seconds left so be brief the bottom line of this for you is do you fundamentally believe as lawyers and as judges and as people practicing in the real even assuming mr davis statement wasn't sufficient was certainly sufficient any supervisor i can't tell you that i wouldn't hire him because he might sue me well unfortunately for mr get out got a miss horsley actually kept notes of the conversation and again the final thing is if that is the agency we're dealing with if that is the credibility of the agency we're dealing with here we least get a hearing to find out from these people what really went on and i see my time is up thank you wanted and second mr armstrong never developed what he wanted to have done at the hearing second mr armstrong can at demonstrate that he was misled by take this failure to talk about the august september and december contact when the armstrong's attorney was sending said any contact since december of two thousand and seven and there he cannot demonstrate that he was intentionally misled about the january two thousand and eight contact because despite having the opportunity to pose both the attorney who sent the e mail and the person who received the phone call the hiring official at the u s d a has not shown that the a p the person who sent the e mail lou and has not shown that it was a material contact preliminary matter it is necessary to lay out what the standards are for voiding a contract on the grounds of fraud especially if on that agreement inherits the department of veterans affairs this court established that petitioner varies a heavy burden and must show that the agency knowingly conceal that material fact or intentionally misled them additionally when there is a merger clause in the settlement agreement a party cannot rely on written issue of whether or not the amnesty be should have had it hearing it did not abuse its discretion by not holding a hearing because first this court's two thousand and ten decision said quote the us to be should hold hearings vote on the merits if they are warranted following we note that on appeal mr armstrong asked that this court make decide this case without indicating what other evidence he had present and said you can use the same record and the same appendix that i filed previously given that we find it hard to say that mr armstrong is entitled to a hearing where he does not attempt to show prejudice for not having the hearing on after the remanded mr armstrong may make an attempt to introduce additional evidence i'm not aware of  have been given the opportunity to make further argument because they hear the decision the first decision first and it to be decision had turned on really the americans with this court had said well if you're making it on  before and in this court's prior decision this court indicated that did not think it was appropriate for the embassy p v t making judgment calls on whether or not the evidence would eventually show that he would win  you should make a decision you should separate lead time and a determination and the merits decision this court explicitly how that it may be that armstrong's new evidence the evidence that he had presented previously will not change the outcome we expressed no opinion on whether this is so though this court was explicitly not making any decision about whether or not this yesterday's merits terminations would be correct do you think we were sending a more to mr armstrong's e mails mr armstrong specific question and the question comes up why why was mr armstrong interested in the period since december of two thousand and seven and the reason as it is shown at the pending one seventy is all cleared up can we get some confirmation lost to mr armstrong and his attorney and it appear that as of january second two thousand and eight mr armstrong that the u s d a was still therefore the m s p fees decision is supported by the context and the text of the e mail exchange itself also the m s p b s decision about the contacts that in this and august september and december were information mr armstrong additionally the records indicate that the conversations between agents rocking o'malley were purely related to the privacy act investigation again mr armstrong asked why  were why i would take the asking these questions but the fact is mr armstrong's privacy act investigation said someone is releasing confidential information about me physically they're living it in this horsley is only natural therefore that the agency in defending itself in the privacy act lawsuit would send agents to ask news hoarsely from whom are you getting this information where it leaked they're trying to plug for the january two thousand a towel a phone call the board had substantial evidence for its conclusion that there was not a known concealment of a material fact when it came to mr our science in the fund settlement agreement first on the knowing from this class all did not second the under that point the the telephone call did not relate to anything those materials the board conclusion on this point is supported by the potential of the no of the investigator said that the question was simply about you said in your generate second letter everything regarding armstrong is all cleared up from whom did you hear that because or seem to have a problem that people all the king information want to make sure that it's not another leak at the agency of the settlement agreement relate primarily to one of mr armstrong's ability to testify as law enforcement officer and to his ability to are what the proposed penalty was is that is was is supported by the text of the settlement agreement itself therefore the conclusion that the five in a telephone call saying who told you that everything was armstrong which is all cleared up because based on your generous good letter was not material not related to the question of you know either  may two thousand and eight after the january contact after the certainly after the august september and december two thousand and seven contacts the u s d a was still interested in hiring mr armstrong is fourthly sent a letter on may fifth which can be found in the back of the government's brief the government and they said four hundred that said we received a letter that was sent as part of the settlement agreement to february thirteenth two thousand and eight letter that said that mr armstrong had accepted a thirty day suspension without pay i would like some more information on mr armstrong before making a final decision i would have to go forward with this decision on whether done hire him could you please provide that information the terms of the sunlit agreement for civically forbad death for making any further communications unless mr arms strong allowed them thus the us the i wasn't able to respond to the may two thousand eight letter because it is simply agreed in the settlement agreement not to make any communications without his consent very briefly i'm not aware that the plaintiff in this case people in this case was ever offered the opportunity by the board nor was there any procedure in over all the regulation that would have allowed us to assume it additional evidence to the board in its decisions since the court remanded the first decide timeliness and then the fashion whether it should have a definite you're hearing so we're arguing from a quote record that's never been developed again the government keeps talking about the facts in the opposed the previous case let us develop the evidence that can establish fraudulent intent there is enough information in this matter to indicate fraud i won't characterize as the government did the e mail exchange between me and mr cresswell i'll simply refer you to it i refer you that it's not talking about the december time period for miss cresswell it's talking about the agency's response to the director or at least august two thousand  inquiries described in the january two thousand and eight letter from direct there hoarsely we were talking about december only because that was the time period that was being involved in discussions going forward on w armstrong would have to make a statement over the horsley or not much of the government's brief is speculation much of it is argument based on a partial record that was developed in an unrelated case between unrelated but overlapping parties the only thing we're here to ask you is again fairness we didn't get the opportunity to present what we should have been able to present if we can present evidence of fraud so be it if we can at least give us the opportunity to have an evidentiary hearing before the merit system protection board on the central issue because i think we've raised enough and again unlike any other appeal i've heard in this case in this court in the six or so for the two times of appeared here i've never heard people argue about what the underlying facts would show because usually there's a record that's developed a law that we rely upon all i'm asking you for is the opportunity to give us the ability to base that  other thing the government said it said that we were only interested in the contacts since december well that's your logic we weren't aware there were any other contacts prior to that false criminal investigation him with a very to officials who contacted mr horsley i'm quite certain if there is any waiver that waiver didn't apply to those two individuals and i'm also quite certain that whether or not mr horsley knew about it as this court has correctly opined that agency speaks not to want to ploy but through its agents it supervises officials and again in the final analysis the government has to come here and argue essentially to you that the board got the underlying evidence right on a quote record all i did was file a petition for review based upon what i knew at that time i have never been granted the opportunity under any procedure by any entity develop evidence beyond that point and to argue that i should have submitted some record or i should have taken additional testimony wouldn't have the authority to do so speaks what the problem is here in the final analysis we just need to have the opportunity to present our case that's what litigants come to courts for and that's what federal employees at the end of the day are entitled to the final thing we're entitled to is to be treated on a sleep by the government if mr armstrong loses or gets fired or is punished that's one thing but he's entitled to rely upon the the truthfulness of the agency that he's involved in he's entitled to rely upon the truthfulness of senior officials he's entitled to rely upon the plain word of lawyers and he's entitled to trust in that word because they're