s of the penalty as well as a harmful for procedural error that was conducted below of with respect to the first argument the agency has a burden to to establish and sustaining any kind of misconduct first they have misconduct occurred that there's a nexus to the actual job duties of the individual and there's reasonable cause to the penalty that the penalties proportionate to the offense here here when the agencies reach the ultimate issue as to the reasonable sort of penalty and removing mr bidlake from federal employment in error by misapply are misinterpreting the gig leo stand the administrative judge and the m s p be continue to follow that same misinterpretation of the case law in finding that the nature of seriousness of the offense warranted removal in this case and what is impairment which are mostly i haven't seen before but apparently it affects the ability of this individual to testify office to refer to a federal law enforcement officer that has some sort of giggly zero impeachment evidence in their record that has to be turned over to the defense and it's an extension of brady versus maryland there  of impeachment evidence has to be turned over to the defense in a criminal prosecution however not painting the character of the witnesses that the idea of rather than anything relating to this specific case that's under review yes that is what's going on here but it is not just any impeachment the case law and even the united state attorney's own policy states that it has to be the law of that type of evidence that will have a substantial likelihood of affecting the accuracy of the witnesses testifying not only pietschmann evidence is going to affect the credibility of the officer we can assume there's a sliding scale of of possible impeachment evidence you have a criminal conviction for perjury on one end of the scale which is going to be pretty  disagree no i think it's actually in the discretion of the united states attorney's office or the case was very clear that determination rests with the prosecutor it's a balance the agency is not in a position to evaluate that the prosecutor who is the warning agency doesn't one run the risk that that discretion will be exercised by the prosecutor to ruin with the pace of the actions as i indicated before their ye can follow the agency's own policy ultimately the decision is that the prosecutor or don't you think the agency has some interest in making sure that it's investigators  are more or less free harmful cross examination i think the agency certainly has an interest at that point like i said before there are varying degrees of a myriad of job duties that a criminal investigator that could handle that this type of evidence would have absolutely zero impact on their for law enforcement career and to bar a federal employee from this type of work for the rest of their career based upon a single in consequential incident is inequitable in this nature and that's what we get back to doug's the agency's decision is the deciding official indicated that given  severity of this offense all other factors as considered by douglas will have no bearing that the individual that mr bin next potential for rehabilitation is not even relevant based on the facts of this single incident and that was an error in this case mr binik has had to sit and as referenced in the decision itself and the testimony of the deciding official he has a very distinguished history of federal employment working with law enforcement agencies even presented exemplary s there was a single violation of the agency's article policy and that was what was the charge that was sustained a lot and that may have been misconduct as determined by the agency of the administrative judge but that should not given the facts and circumstances of this case based on the correct interpretation of figlio do i remember seeing something in the record or somewhere that violation of the trainee honor code had a specific remedy held out you got thrown out of the training program not imagine staking about that if you look at the honor code which is set forth in the supplemental appendix it discusses a range and it goes from i believe a informal counseling to removal exactly what douglas considers it is a range of penalties that are available there and what this court and what the m s p should have done is take a look at this and say you know what your interpretation of number one the nature of the seriousness of the offense which case law said that is one of the most important factors we look at in this balancing was incorrect you err that feeling time in trying to understand at that point this should have been sent back when you consider all of the other evidence that shows the potential rehabilitative of facts of mr bennett in this case and i knew you started out noting that a conviction for perjury would clearly range of the supply given cheating isn't that different from perjury into i think if you look at the deciding officials on testimony he indicates that it is generally look at the agency's policy to follow the concept of progressive discipline first warning second warning things of that nature here you know this is certainly the potential for giggly zero evidence it may be discoverable in a criminal proceeding but that doesn't mean it is necessarily going to hear the officers testimony procedure as i said before there are a lot of job duties the criminal investigators handle that would have absolutely no bearing on this type of evidence and the judge in a district court criminal conviction for a criminal case may probably exclude that evidence but it's not the agency's determination issue we're looking at what is the standard view or are we looking at whether there is substantial evidence to support the board's findings in this case i mean still the question is whether there's substantial evidence to support their boards view that he that he could be if we don't hear my understanding is whether or not for the substantial evidence standard is whether or not there's substantial evidence to support the underlying charge and at the board level it's a  evidence standard which as you can see from our brains we're not arguing that here today the preponderance of the evidence standard the board satisfied and that lesser evidentiary burden of substantial evidence just to whether or not the misconduct occurred analysis of all twelve factors there is a balancing of those but because the agency the ministry of judging the board incorrectly it interpreted quickly oh they didn't do a proper weight at that point they didn't look at any of these other factors and so his is federal history his potential for rehabilitation his clean record all of those things should have key might it whether they correctly interpret it without excuse me i mean if we disagree with you on whether they correctly interpret giggling alan then you might agree that there wasn't any need to consider the other factors because they couldn't be rehabilitated or even that i disagree i think with respect to the rehabilitation aspect to say that just because of a single violation of an article of our policy that this employee has zero potential for rehabilitation over the course of their entire federal career i think we can imagine a situation fifteen years down the road twenty years down the road thirty years down the road that that  could easily have better be rehabilitated and i go to more of the comical side of things but it may not even take that all you know we look at mr bennett's prior history here he's got a history with law enforcement he's got a history as being a marine reserves he's still  i just wanted to touch upon and i'll i want to be safe for three minutes with respect to the agency's own policy of the the policy with regard to referral to the office of professional responsibility for an internal affairs division this is exactly why we have that check measure in place to materiality err on the side of disclosing exculpatory impeaching evidence but backing up a little bit it's important to recognize the agency's in a position here where it needs to make a decision about its personnel going forward and what is a t f special agent it's going to be doing its  he would have had he would have then been required to if he would not have been able to conduct the duties necessary to his position which you then hired a special agent he would have needed to in order to j complete the training yes yes but there must be some rule that says if you fail to complete the training you then revert back to the well he has if you didn't feel that the training for that failure don't argue the merits of whether he did something wrong just answer the question the question is if you don't complete the training satisfactorily for whatever reason where do you go that ordinarily options before deciding official work for example if the deciding official had decided simply to say you're out of the training  would have happened to your client do you happen to know he didn't know do you happen to know there's a couple different possible is that what if the agency were to remove mr bin x for his inability to complete the training program i would have a completely separate charge of misconduct altogether that was never alleged here the only allegations a single violation of the article policy let's assume they found him in violation of the honor code policy and they decided that the remedy is to remove him from the training program period what that at that point it would have depended on what his prior position was with the agency and i was well not familiar as to what exactly that position is there were certain positions in the federal government that have a reversion right now where we don't know what options were actually before the at that point well as a decided official even said the deciding fishel didn't even consider any other options it looked at the boss and you know in the his own testimony he discusses the agency's policy of progressive discipline and he just goes to the on reasonable standard of govt with respect to a couple of comments here the agency contends that the penalty is left to the sound discretion the agency that's not correct when the agency selects a panel to that is grossly disproportionate this court the board may go back and order a lesser penalty there's plenty of cases where the board's gone back and ordered a lesser penalty based upon an inappropriate balancing of the douglas factors so the agency while they may be entitled to some discretion there their decision is not ultimate clean up the ultimate but it usually isn't rigorous it is not always reversed but there is plenty of cases out there where there have reversed decisions based on a single violation of misconduct there where the agency selects apathy that is so grossly disproportionate with respect to the policy i think it's a very important distinction to look at this this i d policy versus the trainee program you have a very specific policy that applies to integrity violations or partiality and professionalism and then you have a very general policy that applies to trains that that may encompass all types of misconduct being late for work assaults you know any other allegations there now those allegations may rest with the chief here but you have a very specific policy integrity was never given the opportunity of the investigation stage to explain himself talked to the other with the other trainees and develop that record in a much more detail and fortunately we don't have that investigation so we're at a disadvantage when we're looking at the facts to support