there are three issues before the court today first whether the arbitrator applied the correct legal standard second whether there was sufficient evidence to support the average traders finding and three whether the average fares ward was unreasonable first the petitioner contends there or is it your position that there's are you are you arguing that there wasn't substantial evidence for a nexus that's another argument your honor first would argue that there was no such implication to begin with second amat there the term nation was not in conformity with the decisions of the most b b and when you say it was unreasonable or you are you are you tack in the penalty determination by the arbitrator mainly are yes we're arguing that other similar clearly states that quote the zero tolerance policy must take precedence we would argue that this is not the correct legal standard you cannot apply as your zero tolerance policy in the case of douglas vs versus veterans administration well i it might be invalid it seems to be somewhat the same contention that's being made here is that we are printer assumed that he was dealing with a zero tolerance policy but in fact on the face of it it appears as though the policy is not a zero tolerance policy i would agree with that corner there is no evidence that there was a zero tolerance policy that was marked by the bureau of prisons and therefore applying such a policy would certainly be a clear  types but what about the fact that we have a finding here it's not a contention but we have a finding by the arbitrary that mr tourist did not know he was taking steroids certainly would first say he was he wasn't charged for anything he admitted to using a lot of stink sharks in for the agency in the removal and i guess what i was thinking about the agency charged him with illegal  drug use correct yes your honor and the thought came to mind in order for someone to do something illegally do they have to know that they're doing i would agree with that point so you're saying that there's a problem because he was charged with an illegal act but he didn't have the intent correct correct and also we have a recent decision rest is that question which i hope the government's f where we held them where someone was disciplined based on assumed in libya ality of the conduct and the conduct in fact was an illegal that there had to be a the term a nation by the board this executive order specifically states that illegal drugs means a controlled substance included in schedule one of schedule two again as we discussed earlier steroids are clearly not there clearly listed as a schedule three substance that would not be defined as an illegal drug under this executive order which is another i think when you look at each and sees i guess it's the drug free policy is reflected in its its program statement correct and that's what we agency's drug policy yes you're on twenty one as the beginning of the agency's drug free workplace but i was simply on page sixty want to get referring to the executive order which would set this place that did the find it legal drugs and did not include schedule three drugs as an illegal drug sir if i can think back the only thing i can think of the evidence as to where the drugs were administered was mr torres was preparing for the fight i can't remember any testimony specifically on where the drugs w were charged with and terminated with either possession or use of an illegal drug schedule one schedule two drug these cases include krueger first part of justice bolling versus department justice lewis versus department of justice and your to vs department of justice all of these cases and include instances where an officer again was either charged with been terminated for using drugs  or possession of drugs and all of these cases the terminations was over have over terma or mainly for the point that the the team ploy ease showed a good potential for rehabilitation now the instances where the board the terminations are usually with cases where the employee has not shown to have a potential three boats ation those cases include martin versus department justice jones versus department justice merely versus department justice and very argue because these employees did not show the tensile for rehabilitation it's the that the discipline here was founded on that on the notion that this was illegal conduct the arbitrary didn't find it was illegal and there's a there's a a a ground at least to argue that it wasn't illegal because it policy which he does mistakenly call as your own tolerance policy would agree with the court that it's not the everclear zero tolerance policy but he is referring to the drug policy and the policy against the use of illegal drugs or abuse of didn't know that it was steroids initially but let me excuse me for jumping in but time is fleeting is you know let me ask you this he was charged and i would say one thirty seven with the use of an illegal substance and that's the schedule three steroids here what the arbitrator said the arbitrator found he apparently had said he apparently had no knowledge that steroids were being administered and what would have to be honest troubles me least charged with legal drug use with use of illegal drugs but the finder of fact has found he didn't know it was a legal and how does it promote the efficiency of the service the nexus connection to remove someone for use of an illegal drug when they d know the drug was illegal the arbitron are signing that it was that he didn't know that the substance was the steroids would be that he wasn't matter of fact that mr tourists did not know he was having an illegal substance injected into them and how does it promote the efficiency of the service to remove knew that there was no question that he was injected with steroids he admitted it and it was on the website no question about that but it seems to me the issue is here he didn't know it in the  it's not just a case of where he's making the contention i didn't know but the aide sort of the we used a just the arbitrator found as a matter of fact that he did not know how can you promote the efficiency  seems awfully i don't want to use the unfair because sometimes life isn't fair but i just have a problem seeing how the sufficiency unser the efficiency of the service is promoted by removing someone not necessarily now but why would you move someone if they didn't know what they were doing was wrong or again it goes to their judgment and deciding to do what they were doing whether or not they know he didn't know he was using illegal drugs had it's bad judgment to go out and use illegal drugs to say the least but if you don't know you're doing it how is that bad judgment well maybe someone could say well he should finding with it's wrong to go to a trainer i mean i have no knowledge one way or the other maybe trainers are authorized to give people injections maybe they're not i have no idea and there's nothing in the record on that but again there's no he's not charged with going to the trainer and having an injection he's charged with using illegal drugs it may be that going to the trainer was leave it maybe it was legal for the trainer to give injections maybe wasn't i don't know but that's not the charge there's the trainer but assume for the moment that the trainer is authorized under certain circumstances to give someone an injection i don't know maybe the trainer is or isn't but if you assume that if you if you're being treated if you have dream the trainer says i will give you this to treat it and you don't know it's an illegal substance what's it wasn't charged with but well let me let me help her opposing you it seems to me the argument that you should be making is that every time somebody takes militant drug that it's very common for people to argue that they didn't know that it was the illegal or they didn't know that they were taking it that the very common thing and so if you're going to have an effect of policy you can't allow supposed lack of knowledge to be a defense that would be in order the problem with that are human however is that that's not what he was charged with that the  charged with illegal conduct so it strikes me that the fact that he may not have acted illegally is something that's pretty significant here as a defense  schedule c products are not illegal as compared to schedule one and do really really charge with i suppose is that judgment in taking this your tweets aren't supposed to take controlled substances quite a difference between really galaxy and a controlled substances they're not putting aside the question of whether he knew i didn't know it's filming that he knew he wouldn't dare i then that would be illegal because he was living and dying and working at his correction officer job during the summer months and simply travel to england for this one particular fight which took place in september of that year because he specifically took leave soon as it would the probably the agency's policy would apply i mean assume for the moment that you had a you had a federal prison that was located near the canadian border  soon for the moment that certain drugs that are illegal in this country were legal here and the person went in over the canadian border after work every day and used the drugs from canada where it was legal but then came back here those your fault you're stuck with the case but only what what bothers me is the intent issue here how can you when there's a finding that they that the person didn't know it was an illegal substance  lack of knowledge about whether the drug was legal or not but certainly if not a concern about taking the drug there certainly was a problem with his lack of reporting timely reporting then charges so he was charged  into the douglas factors in mitigation but if it is charged with legal drug use and he doesn't know it's illegal again the only response i have for you on that is that the judgment and his trainer without a prescription and without knowing what it was particularly given his position as a law enforcement officer who are held to a higher standard than ordinary federal employees and particularly that he was in the bureau of prisons the agency what had happened and he was allowed to continue working he continued to work mail room for a period of time he was then moved to a shoe officer position where you had direct contact with and mates he was later moved back to the mail room until he was terminated may twelfth two thousand and eight and during this period of time you received a performance evaluation which can be found on one eighty five and one eighty six of the attempt this was completed by his direct supervisor noting that his rating was exceeds there was a handwritten note stating that he did a good job the raters comment on page one eighty six was that mr petitioner has performed all assignments in the most effective manner during the year in displays a positive attitude toward all work assignments and day to day contact with both inmates and staff this will really go to the penalty correct i mean assuming the words  mitigating type of factors in this will the reasonable sum penalty when i'm sure you know this would show that in fact his efficiency of service was not affected by what whatever his actions were in fact he was able to go back to work