we're ready whenever you are grounds for random ins separate analysis was she focused on the lack of candor in the determination letter it seems like there's no dispute however between the parties in this case that the border agency isn't necessarily for purposes of arguing clear and convincing evidence to dismiss your client a lack of candor is the only thing they can point to i don't think you disputed that right x page zero seven zero and that that was given after all the supposed misconducts of mr erlich took place and in that of valuation t were eventually participated in these terminations the numbering up any of these acts that they say justify his termination they gave him a good report at this they said it was fair they gave him actually readings with regard to medication safety there was no no no description of anything prior to november twelfth two thousand and thirteen and all of the acts which they concluded that seek out twenty five in december eleventh took place prior to that evaluation so it makes no sense whatsoever that he would be terminated for things prior to this evaluation satisfactory and then later they say he was terminated because of things that happened before that can i ask you for a little more detail and i guess you're you're left with the credit generally with the credibility or terminations of the a j and in this case he really on some of these points he really credited the other side but i'm a little confused about what was really happening with the approval of his use of sorts of c h c f c s yeah because the charge itself in the discussion is about some support for seventeenth date yes but it appears that what was really going on was that even subsequent to that date through november your quiet appears to have not accessed the system and then using the system as the agency contends it thought he should have been doing so is that right away looking at that period between september and november for when he was not react sustain the system having the told to do s had also brought up the point that initially when he first started work there he didn't have access because he didn't have is this the news that was there not a lack of clue was there a lack of clarity as to whether or not the agency expected and wanted him to have access to the system well there's a requirement that they have access but initially for two months he didn't have access not it was all doing they didn't even provide him with access and his position was that he only really needed to use the c i s system yeah but his position was rejected and let's start from there that he doesn't get to decide whether or not he should have access to be using the system there to see gets to tell him to use that and at some point at least you agree that they told them to use it this is at that was in your view september seventeenth at the september eighteenth i mean so what happened in the six weeks after that through november when if it all did he get access and actually that if that was really an issue with them if they really had a problem with that it should have it been included in his evaluation november they didn't mention anything about that the mission of any real negative things that he was doing with regard to his performance so our position is if they really are fully we're concerned about that first of all they would have had him connected to those two months at the beginning of his appointment and they would have mentioned that in  so that's our position that there's really no clear and convincing evidence that he would have taken that step to remove him because i don't have the seal on this seat back twenty five has other things they can do you know they can suspend him they can affirmed because substantial evidence supports the board's determination that the army proved by clear and convincing evidence that it would have removed mr irwin during his probationary period for his misconduct regardless of any protective disclosures so the two lack of candor and that's a minimum underdeveloped term with respect to what we know to be the facts of this case and the other point your friend raises is that there was this intervening performance appraisal and if this limited to relying on lack of candor because that was the and the misconduct identified in the removal letter but there's nothing that precludes the agency from relying on all of mr irwin's misconduct and again in traces of  employees let me ask there is that is the government's position that that is different than that would be the case for a career conditional or another permanent employee in terms of the removal of that in that case is that the government's a group just the government agreed that the agency would be constrained by the specification of the termination letter as a starting point i think the constraint for a tenured employee would also concerned due process concerns and there have been instances where the deciding official has taken into account any of that and even a requirement that they can't go beyond the four corners of the termination letter isn't it kind of probative that that wasn't the basis there wasn't clear and convincing evidence for the agency to take that action if all they relied on was something agency ultimately relied on at the hearing was discussed and the request for an adverse action and so this was it wasn't that the they made a big deal they kind of use that against you because they point out do they not that the rather than than a wall and so the initial feedback to describe the charge as a wall and when when they looked at it internally and saw the text from state and they no longer refer to that as a well however they did continue in the subsequent see back to mention his failure to report for duty when called and i don't think that mr wynn gets the benefit of the timekeepers error to make that misconduct suddenly be proper conduct what about the whether or not it was this is really again a notice argument and whether or not mr irwin was on notice of his misconduct is really irrelevant to whether or not the agency proved that such misconduct was the reason for his remov board not just a notice required it's not just a notice issue right it's a question it's the agency's burden to establish by clear and convincing evidence they would have taken this action anyway so all of these fa arrows at least point do they not to the fact there was not clear and convincing evidence and because you just assume if there's a real problem with that employee with regard to access of the system that would be reflected in the performance appraisal of that individual for that period of time again mr irwin was counseled on this and the agency did take it very seriously as your honor noted to mr earle as counsel the lack of access continued beyond the september eighteenth and counseling for two months during that time there was a very serious patient safety event that occurred because of mr owens lack of access to c c s he was unable talking about which is really focusing on the six week or eight week period following the september seventeenth no he that i believe that the period following is the continue to tell you to maintain access which  also found to be misconduct but the lack of contact the lack of candor relates to the known obligation and this was something that was included in what's called an initial counseling document that lays out  to something and i don't recall it in the record which is that his client could not access the system for two month period early on there correct that there is and reference in the record to when agency that that itself was misconduct but that once his account became active at that point he had a duty to maintain access the mission description the initial counseling document also talks about how important it is tall the fact that this was still the probationary period but the entire procedure is determined on the merits of the action as if this was not a probationary employee well this is a whistle blower telling action action so the agency has an obligation as in any retaliation action to prove by clear and convincing evidence that it would have taken the disputed action however and i think that the fact that he's a probationary employee does come into play for something like what we've been discussing whether or not the agency was limited to just relying on the lack of candor charge or if they different views that i think precedent applies to probationary employees and the need for a stub wishing detail support as we're discussing his vote both of you whistle blowing up if he would have been fired anyway in your view that defeats the whistle blowing claim but for anything else he's out of court the because for his probation yes and probationary employee has no right to directly challenge their removal the only way they can get before them the p b s and irene action like he filed and there's no right charge but as a practical matter applying those doing principles in this case the difference between his case and a probation and a non provisional his case goes to whether or not we're constrained to look at what the agency said in the notice of removal or the termination letter or whether we can go beyond that that's fair and i think that that the court can go beyond that as the and as the court did and while mr irwin did not have noticed mention anything about any negative things that he's doing he has a couple of should be going to more meetings he should join some committee well his ratings regarding patient care were good so and with regard to the due process issue i mean our position is that he should have at least been notified of the things that he was doing wrong and he could be terminated for and give them a chance to respond to it they never did that they  doesn't have a right to raise toast issues because he probationary has now correct well our position as a as a probationary he still entitle to notice of what he's doing more than a chance to and then the very last moment that they had to terminate him because his last duty was on for work sex just before because you'll have to go to the one year period just before that him except for the whistleblower