four cases on for argument today there's cases number two thousand and nine thirty two thirty seven tudor against the department of the treasury mr berg petitioner here suffered an adverse action because according to the findings of the board he improperly referred tax cases to the u s attorney's office for prosecution without authority we know that mr tutor at all relevant times was a criminal investigator for the internal revenue service and the reasoning of the judge in the board decision was that mr tudor had authority of cases but not to refer cases in his capacity as a group supervisor in the a g actually decided that he did and with already with regard to the initiation of cases i misconduct charge concerning the improper initiation of cases was not sustained by the court and so it didn't survive for review here the only narrow issue that was sustained by the board was the referral authority we know that the dallas field office where mr tudor functioned i did unusual arrangement with respect to referral prosecutions well though the agency had a standing rule that only the special agent in charge assume that you take those two lines out of the opinion because they're just wrong what what's next what happens and then there's no substantial evidence including the admissions as reported at least of mr tudor which admissions seem at odds with or at least intention with his testimony i have missions i'm referring to seventy four this was a i believe memorandum of interview number six on page seventy one mr tudor stated levy never received verbal permission to refer or investigation and then he later down on number eleven he had already on with respect to one investigation but generally not and then seventy four i believe he never received verbal permission in the paragraph to refer investigations to the department the question would be why isn't that evidence substantial evidence acknowledging that the minister just didn't specifically rely on that but why wouldn't that be sufficient to constitute substantial evidence in support of her decision i do response as one with all due respect to the court i don't believe the court has the jurisdiction to examine the internal memoranda of the agency because your jurisdiction is confined to review of the board decision it's only the board decision that is here for your review well but if the board decision was a decision predicated on a record that included this evidence then this evidence is before us because that comes up to us as part of the record on appeal i would agree with the judge's findings are confined eleven mr tudor says it reportedly says he's certain he did not willfully or intentionally in the middle of that paragraph you did not willfully or intentionally virally policy it's absolutely untrue i didn't circumvent the policy he's responded to the questions he summarizes his state of mind who's writing who's typing up here apparently the internal affairs investigators and mr three are given a copy of these type up so a credibility call against your client we can presume that he is almost carrying that have first credibility ruling across all untutored testimony i understand so if the credibility determination falls were no basis for it then we're go back to the record and we would have to credit all of tutors sworn testimony that's correct and the only evidence i believe this court has before it here that's correct i sort of blanket approval for initiating cases provided that there was follow up and talk with him and he said i'm with regard i just want a different system with regard to referrals sort of like the two of them had to work that right and there was no effort by the agent to reconcile the internal memoranda of the agency with testimony at the hearing and there was no effort to impeach since he or mr tudor by agency counsel at the hearing either with any alleged inconsistent statements but it is the question of whether there is substantial evidence in the record even though the ages opinion may not have made specific findings or may not have made specific statements attempting to reconcile statements nonetheless they were considered and the a j concludes that the first charges supported based on the evidence of record the appellant stipulations at the hearing and it's admissions under oath record only the board's decision and the evidence that was a deuce before the board now that's the evidence that was a deuce before the court which of course includes a lot of this evidence that we've been discussing which even though the minister just didn't discuss it is still part of the record and therefore before us i think we can manage a stand your argument but i wouldn't put a lot of weight on that contention well then the record is strewn with cross examination is all about the whether it's an agency itself substantiates a misconduct in of itself i just don't see that as the role of this court to make an assessment if the judge himself didn't feel that it was relevant relevant enough material enough to even make mention why can this court said well if this is just a normal judge if this judge had written a one page fortunately the ministry of judges to their be able to say with any persuasive force that we can't consider evidence that the judge didn't discuss so i don't think you have much to go on by saying week for purposes of substantial evidence we can look at the entire body of evidence that's before the administrative judge and decide whether that was important now you may argue fairly that the judge was wrong in for example his characterization of the since he's testimony and that skewed perhaps significantly skewed the judge's ultimate conclusion but that's a slightly different question from whether we can look at the rest of the evidence in deciding doesn't appear that the court has the authority to trist search the record with a search light and find anything out there no matter where it's located even if it's not brought up in the course of the board hearing but you know does it matter the least he knew he didn't have the authority to initiate the murder refer in there that now that may have been you know we didn't have already and the statute the investigations he believed he was given verbal authority  it was no standing authority whatsoever for him to refer those cases there was no written policy then with arised him to refer those cases but there was a deviation we know there was a deviation because a judge made a finding on page  he'd five of his decision to do was a deviation there was a verbal deviation that's what's so unusual about this the sacked testified you had a verbal authority to deviate from a standard policy and delegate morning your honor is in may please the court because substantial evidence in the record supports the m s p p's decision below this court should affirm the decision sustaining the motion penalty imposed upon the petitioner mr tudor is there any substantial evidence that under his signature sixty four activities and is it your testimony that you had given him authority to do that and all those cases are only under five and the answer is i gave them the authority to initiate in only the bulk the initiative cases the five cases but it doesn't say anything about referrals but the n j being there reasonably interpreted the answer as saying that it is a compound question that drew no objection and the answer a sixty five explicitly contrasts the authority issue with that over initiate investigations with initiation mr in the sense you said you could talk to the a sac after you initiate with respect to the referral you couldn't go ahead and just refer cases for prosecution but to the extent you referred to a source for prosecution you had to consult with the a sec prior to or in conjunction with so the notion and keep in mind please  all the other evidence to read it exactly the way you did it the a g said i understand mr tudor to be saying have is the a j reconcile the testimony with this data point on page eighty seventy one of that what happened in that interview when we don't know you know who was type in your view up in the interviews inconsistent because at one point tutor says he never had verbal  basically hanging your hat i think on the administrative record all the interview you know and also the a j makes a credibility finding for example the agent says that mr tudor expressed surprise and being asked about the sixty four different times that mr tudor had initiated or referred jaysus for prosecution that is precisely the type of reason why the a j is given such almost an reviewable discretion to make now you are i gather you're saying well the first reference on line three to testimony is not iranian speak cuz it's a compound question the second now you are saying that is not inconsistent with the statement on a sixty five of the blue appendix because what because the sins keep that the statement honor my my our point with respect to a sixty five is that mr le sense he is contrast and yet with the authority that he gave him to initiate investigations in certain cases right but the refer the statement that doesn't explicitly testify i never gave him prosecution that already in substance does not say that well i mean this is an important point that this is a critical point in the case and if the a j got it wrong it seems to me that affects a lot about the way we should view the administrative judges opinion don't you think but the administrative judge is well even if the administrative judge get that one wrong let's just start with false to the u s attorney in his testimony well that is the testimony i believe on sixty five your honor where he says where where mr berger asked mr low sense of you what about with respect to cases referred for prosecution did you have the same arrangement as as with the initiation not necessarily you had to speak with or discuss it with the a sect and then because that's how you get to you and but he don't have this blanket authority remember total of forty as long as my supervisors kind of knew what was going on because they kind of knew it was going on and since they kind of knew what was going on i had this complete blanket authority i didn't have i was he may have  but he did say is this it was a compound question about referral and investigation and he said and i only gave him authority and finally just threw that with that's then you come to the testimony when a sixty five but we also have  mr tudor in the management in korea and in the i g investigation saying it was at most one case and we have the testimony of miscarrying testifying to mr sense he told him over never when he came to refer know here's what he told miss king but he testified differently at the hearing but i believe what he told miss king is more likely to be true then we'd be all right but instead what the a j said is he testified that he didn't give authority and if that's wrong then it isn't open to you readily at least it seems to me to say well he weighed the kyng statement against his testimony at trial he concluded perhaps incorrectly that his testimony at trial was consistent with the statement he made but ultimately that board's finding blow is that the board found it quote inherently improbable that mr tudor believed he was grilled that he was either granted such authority or that he could reasonably believe that he had been given such brought out powers because his claim of such broad authority was a complete odds with the records that mr documents three sixty four of what he was doing exercising his authority if they were just aware of what he was doing with that change your opinion regarding just any reason why yes so this doesn't go to whether or not sat down with kelly went through all the cases is you from that did you believe that she must've known that you signed the form that absolutely he's going to there's talking specifically at that transcript page about the specific instances not as a general matter we're talking about the specific specifically what would what would your answer be if you if the record in fact showed here without any contrary evidence that both taylor and the sac were aware of him signing the forty when confronted with the possibility that the two boston's knew what he was doing and condoned it he said i wouldn't punish them there's no evidence that they were aware that he signed these so all sixty four of these in particular with respect to the source if you just say was did that he signed that he would that he physically signed it was he actually with the authority that he was told he shouldn't be doing was signing the full well aware of his approving i missed it i didn't see in the questions were more general was it were the boss aware of what you were doing yep sure what will you do it's i believe it's roughly on ph to seventeen to seventy one of thing here to sit down to seventy eight your honor well ok it's do you have personal knowledge that he knew of each and every one of the sixty four cases in which you were the approving official mr tudor response i would think so yes that's an assumption on your part right yes you had no direct conversation where he said this case i give you approval this case i give you my delegation corrects and the conversation continues but you griese that he sixty eight sixty six a sixty seven a specific reference to the forty nine thirty's is made lines ten through twenty sec says mr lisicki and all of these dash whether you know if he signed them whatever may have been aware of that is that correct the answer is yes knowing twenty right that's correct and thank you what do you make the point that i was concerned where what he was doing with regard to the forty nine thirty's when he wouldn't punish i mean is there really is not an independent ground on which we can reverse here because passing the question of whether or not  to the agency deciding official on that issue there he's in the best position to know and he says he wouldn't penalize his own employee how do you understood that he probably understood that in fact tutor had at least implied authority to do what he did with the knowledge of his management and that's what the record clearly establishes in this case after he had an opportunity of a full blown evidentiary hearing with cross examination and bring his witnesses as opposed to the management review which was stilted he's passive he doesn't have a privilege of asking any questions you can only respond to questions and he has no idea what they're writing down it is the board that is the best test of the truth because we have the benefit of cross examination and i ask this court to reverse this case i remained it and let's let's get an appropriate reasonable penalty thank you thank you