said that he was told not to speak and we believe that that's triple hearsay and so we don't believe that that that is accurate it's also disputed that the  petitioner engaged in any abuse yes there's a difference obviously between abuse and spanking which is permitted where he said he didn't work well that's correct but if we just knew that he caused the bruises and that if you're right it's a question of the connections so just focusing on the connection there was not the testimony as i understand it for hearsay nature making that connection the board and the connection from two undisputed facts as i understand i believe that the connection came from the police report to the board relied on that was an agency file and so that therefore where to the police report mick and i i i had to analyze whether there was abuse and so that they have to decide based on what so that is far as whether there was abuse the board had to look at that the details of the bruising and the details  tell the blues as opposed to make their own deductions they did it when they relied on the location of the bruising so they made it induction based on location the bruising but only if they in the location of the prison analyze decide whether the bruising could've been caused by swordplay or jumping off a hill they said they look at the location of the bruising which is only contained in the hearsay police report because there was no testimony about the location of the bruising and when they said that that of the evidence that relied on that he'd been gauging this misconduct despite that corroborating evidence that he had been charged and pled guilty that he that that was incentives insufficient given the need to be able to to question witnesses and that's the whole point of that here of excluding hearsay and even under recognizing the hearsays admissible they found that when they're lying in a report even corroborated by  criminal charge and they feel that that's insufficient and last without something more than the hearsay evidence and so we submit that here that the only evidence outside of the hearsay police report is that he was arrested that he and mr spanking his son that he was arrested and that he was charged which is identical in the facts in born to cough and also in croup or where the individual was not they were charged they were not prosecuted but they again were arrested in a jail for fourteen days and and then the victim of this decline prosecution it's a similar to the facts here in that the court said that the hearsay knowledge to testify at the hearing the whether the same as the out of court to clarence for signed an affidavit form the agency's explanation for failing to obtain sworn signed or sworn statements the agency did not call the police officer did not call the babysitter to not call the nurse did not the police report is unsigned there are no affidavits and the police agency did not offer an explanation for it's fair to call these individuals the seventh or eighth factors also unquestionably  against the use of the police report to constitute substantial evidence and that mr pope's testimony contradicts the report and that he says he not could cause the bruising and also the credibility of the declarant which  actually she was fired when he's analyzing the minute he says he believes mr polk minimized the allegations he's relying on his analysis of where the location of the bruises the only evidence the location the bruising and they weren't even that the images were not put put into the record was based on that police report which contain itself three or four different accounts of where the bruising was that's where they are aligned so hearsay when the judge just is making the doctrines the only thing he can he quickly that is has a different hearsay problem there that hearsay is a letter that the witness that actually attended and gave live testimony saw supposedly saw it's said that mr polk is terminated  we think so here this is not a or nick off problem it's this is just a lack of substantial evidence in the record there were a prior statement from this witness that he  and that right he wore his military uniform on base and at the hearing this witness testified soley that the reason that mr polk was terminated was for failing to have to follow procedures and the only example in named was they allowed the guards to wear out to wear black undershirt supposed white undershirt under the uniform and so here the our position is that that is obvious contradiction in there was in your record evidence under under determination that is that he looked at the witness and said the witness appears to see untrustworthy and with respect to the first charge the judge in a conclusive conclusion sentence said that's correct i'm saying that if the first charge is not entitled to the same deference of the demeanor based credibility of terminations and the second charge while it is being erased credibility terminations is contradicted by the prior inconsistent statement of the witness  to find the committed and that was the only of them so why would that be sufficient it depends on the the probative value of the police report and it depends on how the administrative judge and report was signed depending on whether or not there's other corporate crime breaking evidence that's just not the case here what we have is the board saying i mean the board in the ministry of judge saying not only are we looking at this police report which we understand has have some factors that weigh against it's probably value but we find that ultimately enough factors weigh in favor of its probative value but in addition to that we have these undisputed facts which are owner of the reader to earlier referenced earlier the fact that mr polk hit the child with a belt either thursday or friday due to a child's violent behavior at school undisputed evidence that the nanny saw the bruising the following monday and had not prior to that point ever seen any bruising on the child the fact that the nanny reported the bruising to the child care facility and ultimately the authorities following her discovery of those bruises on monday it's undisputed by mr pope's own testimony that he was taking taking away the identification of the locations on the body in a police report mr again mr pope acknowledges and it's undisputed that the child was a bruise on the back of his body now the extent of that bruising and how far it fact of the matter was mr pope does agree that that bruising existed on monday and so he's saying that while in addition to those disputed undisputed facts by mr po briefing before the court there is some allusion to well maybe there could have been more evidence as to the extent nature of that bruising but the fact of the matter is at hearing and in pretrial submissions are preparing submissions that that's exactly right you're exactly right your honor and it's part of the administrative judge's credibility analysis that it goes through step by step it takes up this idea these post hoc alternative theories for the source of the bruising provided by mr pope at the hearing and the ministry of judge walks through each one of those alternative through theories step by step and explains why it is as a logical matter based on mr po testimony that it's implausible that either or any one of those three alternative theories makes sense it just does not fly believe the judge said it exceeded the bounds of credibility  addition to that credibility finding the court the judge also makes a demeanor base credibility determination and that is with respect to this idea that mr pope testifies at the hearing and he only had the child two or three times with a belt that was his testimony the reason why two or three times on this occasion i believe that's correct your honor and the administrative judge having heard his testimony and having lived with the case made the determination that it just seemed like he was trying to downplay because he was trying to minimize the severity by which he assaulted the child and as this court recognized i'm sure for a it doesn't have to be an explicit statement that the administrative judge is making a demeanor based credibility finding it can be enough that hearing testimony implicit in hearing that testimony and witnessing the witness the hearing implicit in that is is this assessment or at analysis of the demeanor of the witness and so a credibility based determinate  a demeanor based credibility determination need not be explicit for the court to recognize that that's the kind of determination that's being made with respect to a testifying witnesses credibility can you point to where did the  the remarks about demeanor the on a twenty two in the last paragraph there is after the judge addresses the alternative of the alternate source explanations for jacob's bruising goes on to make a separate finding that it's read further i find that the opponents testimony that he structured there two or three times with a small belt attempts to minimize what punishment actually occurred the assessment there has analysis there is the fact that he just did not believe him when he was testifying and implicit emetic gann as the court recognize and care for it is an assessment of the witnesses demeanor but even if the court were to find that this word docs was not a demeanor base credibility determination it is a credibility determination it is part of the court's credibility analysis in which the court weighs all of the evidence and so in that there is still deference owed to the administrative judge and in making that credibility and mouses and there is nothing on the record with equal weight to contradict those findings  again even if we take away the police report which was properly admitted even if you take that away you're left with the fact that mr pope offers no credible alternative explanation for how the child not and the alternate theories were inconsistent with the actual bruising that's found them a child can ask you about a different topic with no four page three  brand new defense department reaffirmation of security clearance notwithstanding pretty much hearing this entire story and evidence behind it is not material to the outcome of the appeal so in the regulations the board seems to say that if you're going to submit evidence like this you have to move to do it a motion we have and obtains leave from the clerk of the board he did for i believe when mr polk did it he didn't seek leave of court to file the motion he just filed the motion and the regulation asked th would leave of the clerk i would think to have the evidence or the pleading be accepted my understanding of that your honor would be for example if a party were to be out of time for a filing for example and instead of just going ahead and filing whatever the let's say it was a response instead of filing the response after the time has run for the judge to do so you must first seek leave of the court to get  make that filing and then you may make the filing and my understanding is i mean why does why does that make any sense he finds a motion that says and the second sentence is you actually have to justify the motion right so how do you get preview what the motion may say without actually filing a motion to say here's a piece of evidence that's been developed that was not available during is there some board precedent that says this is to my extreme a peculiar idea t process like this this is what's you know understood to be required i don't have any board precedent that i can refer your honor to except to say that the regulation does say what it says right but i don't think th that it just comes down to whether you're just a procedural issue and that's the board's on an interpretation of it's fact it's procedure but even if the board is wrong about that i can't talk about why why it's not material on the you know conduct  the determination that mr pope sought to have admitted should have been admitted because there was no procedural defect we're still left with the issue of materiality evident even if that's the problem because what before the board and in addition to that the adjudicate the central adjudication facility did not have the same record what if you think i mean whether he should keep a security clearance right ultimately whether he should keep a security clearance but it did not that's part of the security clearances that somebody has temperament exercise judge her i believe that it would be but again the board and the this court the board and the administrative judge had a could have a different record they did not have the benefit of polk on the stand minimize what he will and the the police report but the administrative judge honor did not rely exclusively on that police report it relied in large part on mr pope's own undisputed testimony as well as this determination that he appeared to be minimizing what he done to the child and separate and apart from that with respect to the lack of candor charge there's clearly a demeanor based credibility determination and that's set out explicitly in the administrative judge decision where the judge is comparing the testimony of the employee with that of mr pope and the central adjudication facility did not have the benefit of any of that testimony when making its decision education facilities determination was material as to the question of whether or not he either of those charges should be sustained then and that the court improperly excluded that evidence then it ought to be remanded however makes that that determination is not material and separate and apart from that the record still stands that the administrative judge the board and this court have a far more complete and thorough review charged with not having disclosed that he was employed with us protect which was a defense contractor with him with which he worked for some period of time in order of months and in addition to not disclosing that he held that employment he also purposely omitted the fact that he was terminated from that employment and he didn't just do so on one occasion he did so on three separate occasions where it was clear and explicit that in order to provide an accurate and complete response as he was obligated to do that he must provide without any breaks all of his employment and then leave the separation honor that is rolled in to the reasons for his terminations from us protect and to go to the point that mr jarrett made whether or not there's inconsistency in the record with respect to the reasons for that termination the through the remains and is sustained and here we have two charges of equal weight both warranting dismissal in the first instance and so even though one of those charges this dismiss or or is not sustain we're still left with another pretty serious charge both of these charges carry equal serious weight in our agree just offenses that relate to mr pope's ability to do his job and so even if the court were not to sustain one of those the remaining charge still there is no case that i'm aware of that says that it's up to the court to make a determination as to whether or not it's official but let chance stands for the proposition that where there are combined charges there and one of those charges the most egregious of those is sustain then there is a presumption created that the agency would have gone through with the same penalty as it did on the combined charges and less there is evidence to the contrary and here we don't have any of that and certainly it's still left to the agenc deciding official considers when questioned by the judge the possibility that he wouldn't that mr pope would end up losing his clearance and saying i could work with him on the lack candor charge however  of the evidence and that there was no consideration of the determination and i don't think that since i don't think that footnote addresses that it was a reason determination that it was yeah that's part of that security clearance process or is this all paper or what if it predated me i my understanding is that it's normally on the on papers and i think that's the that that's important here  that there was not a more well developed record before the security before the security clearance adjudicators and that the same evidence that mr hope was charged and pled guilty or six up to no prosecution there's no credibility determination he just denied the fact that would cause the bruising and i think that there isn't any there's no greater evidence in the record from the judge who just looked at the police report and the facts that he had admitted to