i'd like to think that what happened in this case is unique the facts are very straightforward and i do believe that the parties generally agree mr camacho at least for the purposes of this motion we agree about them a gauged instrument misconduct that misconduct was not job related his supervisors who worked for the government learned about it and they punished him in several different ways by suspending his privilege to shop at the base that was automatically done within a day and then a month later his supervisors met they reduced his pay they took from him three hundred dollars an incentive pay that he otherwise would have gotten and they downgraded his performance evaluation and as a consequence he's losing on average i think five thousand dollars a year in income potentially over fifty thousand dollars over what's expected to be why is all that finally nature because rther punishment her prosecution was necessary that's what they said right they did they did it in order to punish him right there actually that's what they say and the problem is that they were government actors at the time that they were acting in the capacity of a sovereign right and then as an employer because well just because i think that there's i understand that there are three cases the government's relying upon that make the distinction between the government acting as the employer and the government acting as the sovereign i think those cases are simply mistaken there's no support for that in the supreme court doctrine and there's no support for that in this circuit the problem with those cases and this is hinted at in the race case which is that probably the fullest discussion of the principle is that the fifth amendment which contains the double jeopardy clause is a restriction on the government amendment also contains the due process clause which is a restriction on the government there are things that acting as an employer the government cannot do that private employers can do and one of those things is they cannot punish a person have fixed regulations when we're dealing with the military for civilian employees or at least none that are implicated in this case but i think what if you were to have some i would something somewhere in here i saw some reference to some regulation but it didn't make it into the record in that and that's that's as it stands but i think what often happens when you have a government employee accused in this country for example in sacramento we've had a series of scandals with our fire department where firemen have been accused of they done that what if they fired image argument be the same here that would prevent that subsequent prosecution i think probably would not be if they fired him assuming that they had cause to fire him that his misconduct was job related and was serious enough that he posed a concern either a security concern or fitness concern and they had terminated him when he was in the think then you would have the problem that it really is a remedy but here if you want to go ahead that changes your legion he was he was among the sanctions was that his exchange privileges were suspended for a period of time and in the record is the document that says as part of that acknowledgement of having those privileges suspended that he remain subject to possible prosecution by civilian federal authorities now you have the option i suppose of not signing that and as i follow through i think they probably were fired in the fee had not signed that and i'm i'm asking if you think that firing him would have posed the same preclusion to a prosecution i want to retreat to my earlier answer which is that firing him if that were appropriate under the circumstances given his misconduct that would have been remedial and i don't think it would have implicated double jeopardy concerns i don't think they don't understand this you know and i'm sorry but i want to stop because i don't understand the distinction ron you take some mone reduce their pay reduced their privileges and that's not remedial but if you fire someone is remedial if you well generally yes i think specifically yes in this case they took money away of that here that's about a socialist as you can get to a monetary fund which is the traditional criminal punishment as you can get if we were here if all they had done to him was suspend his privilege to shop at the base exchange i don't think that we would have  case i think that the schiller case that was decided seventy eight years ago where the woman's privileges to drive were restricted after she was stuck for drunk driving on a military base with her clothes that i think that you know that is a remedy we don't want you in our store because we can't trust you you've got caught stealing here i think that that that's that's but here because of that they also took money away from him and so they're taking him to take money away from them but they don't hire him it's double jeopardy but if they take all of his money away by firing him that is up again and that's not i'm sorry that i think i'm not making broad principles here i'm dealing with one specific case and i think that there are certainly situations where firing terminations is going to be an appropriate remedy i think the district judge when the attorney for the briefs argue that in front of a district judge post a hypothetical about what happened what would happen if you knew or operates on employers had stolen all the computers and  obviously remedial you have stolen from your employer we can't trust you to be in this office so we're going to let you go but what you have here is something a little bit different you have a reduction and you have them taking money away from him to punish him for something that was not job related that's that's different also from the three cases the government was relying upon mcallister read and write that's where the government  pay reduction that exceeds what would probably what would be the minimum guidelines fine after he's prosecuted for this which i think is probably in the hundreds of hundred to one thousand dollar if this double jeopardy claim is not tolerable then this court lacks jurisdiction i think the only the only reason that you might be able to apply and that the claim is colorable at all is that there isn't a clear the ninth circuit decision that rejects an identical double jeopardy claim what do we do with a letter from the from the superintendent in the committee are you referring now after the july twenty seven there about that i'm looking at the third paragraph down the chief was aware of the severity of his actions and truly was questioning his own judgment although he was under a great amount of stress families decoration i emphasize the fact that our senior leaders must continue potential potential and i intend to follow up with him on his plans to rebuild his career and reputation as a trusted leader this isn't it's that has to providers are working with him they think that he has been a valuable employee in the past that's the highest rating that a person can achieve he received that nine rating on all nine of the performance categories and it was only after this incident that he had three of the nine categories downgraded two of them were downgraded to eight and one of them was downgraded to a seven now that's just for the particular evaluation period and it's possible that this man can can rebuild that he can overcome this this problem and that he can eventually even be considered for the promotion to the spot that he would had previously be been considered for promotion to if he is able to reestablish the trust and continue to perform in an exemplary manner now i think you need to also look at the nature of the consequences the nature of the the sanction that was imposed yes he had it based exchange privileges to spend it as i understand the defendants breached they are not contesting that that does not pose a double jeopardy concern so we can start that one this time instead we need to look at the others he received counseling he had an incentive award reduced by three hundred namely have an inability to compete at least initially for this promotion and that is what resulted in his potential reduction or potential not being able to achieve an additional at least initially for a promotion but look at these things they are all job action they're all job related and if he had been a person who came on base because he was related to somebody that lived there and he stole from the base exchange he would have had his base exchange privileges deny so that really can be just completely set aside i think that when you when you start out after you get over the jur after hudson they were decided before hudson and your first determination that you have to make the hudson identifies is what was the legislative intent in the south wishing the penalizing not going to them we don't have any legislative intent we don't have regulations that we're applying we simply have the government as an employer and i think that in that context you can draw from the other decisions of of the other circuits in saying that well what does the employer intended by this by this type of action by the by counseling an employee by reducing an incentive award by downgrading their performance appraisal it's clear what that is that's about the employment relationship between the employer who happens to be the government and the employee the government there is doing the exact same thing that a private employer can do and therefore the purpose is clearly one having to do with the employment relationship and not having to do with the criminal punishment the criminal punishment that is involved here is that is a completely separate thing when somebody goes to the base exchange and shoplift from it there are employee used at work at the base that are in charge of security they monitor the cameras and when they see somebody stealing they contact the the base police interest in absence and the base police person as the investigation and then the base police report to their legal department who refers it to the u s attorney's office for criminal prosecution that's all desperate and independent and apart from what may happen to somebody who an employee on the base if they're a military person they might face court martial if or if they're just a civilian employee who also happens to be in the military as with mr marshall then there are their choice was to not pursue the court martial which certainly would have raised a different issue regarding the double jeopardy but instead they pursued employment action and so  clearest proof of that that is absolutely lacking here there is just nothing at all i mean the closest you get this letter that you referred to judge bryant and that letter was written from the standpoint of somebody who apparently didn't realize or didn't think about the fact that a criminal prosecution might result or maybe they just would like to see it not happen but that's not that person's call to make that is not the call of the crime charged well those people wrote that knowing that there is no separate process that that happens on the base exchange with the base military police etc and it's hard to understand how they could say that and in fact at the government supplemental excerpt of record thirteen the basic legal liaison writes a letter to the same person who was in our mr mayor unit at the time explaining to him that substitute for the criminal prosecution and that the that the legal department and the base commander stood by its decision to refer the case for criminal prosecution based on chief camacho intended only to be the punishment that he have his that if you get counseling and if you get reprimanded etc instead they're saying no they didn't have that right the air force once him to be prosecuted criminally for his theft from the base exchange her the problem here is that all the actions that were done both the ones that were done back in two thousand and two immediately following the event and then the institution of the misdemeanor case three were all actions that were imposed by the government in the fifth amendment is a limitation on the government's ability to punish if what is required in the last says what is required is the clearest proof that the actions were punitive that's what this letter is it's the that doesn't make it all right for the government to come in and punish mr camacho a second time after its agents punished him what they said here is that we did this to punish him and they did it whenever in august and september of two thousand  wasn't until the following year that the government comes in this is guess what mr much we're going to punish you again the double jeopardy clause does not allow does not allow that to happen there is no authority i think in light of the cases that were cited and raised for them a whole different question about whether or not you know invokes double jeopardy and the double jeopardy clause well i think that that there there in that letter they are they're also trying to make that point but they but they say in no uncertain