administration because the veterans administration failed to provide him with constitutionally sufficient due process when it denied him the opportunity to confront and cross examine his anonymous accusers mystery on him at the time of his terminations i had about thirty years of experience as a medical provider and almost five years with the veterans administration as a medical provider in about two thousand seven he's asked to run a an s t d clinic to treat returning veterans from iraq and afghanistan because the clinic had noted that there were a number of  individuals returning from these wars with genital warts mr annan was asked to run the clinic and he agreed given his experience many years before as a navy corpsman in the seventy's having administered general work treatments the v a verified the mystery i know was capable of running the clinic by merely asking him to treat a veteran who had it worked on his hand passed that test ok we're not here on plenary review of the agency's decision we're here on matthew's hearses outreach claim as i understand the scope of this appeal which is that his due process rights were violated because he wasn't permitted by the decision making board to cross examine the involved patients exact and it seems to me that that claim isn't going to get out of the starting blocks because he admitted performing the examinations in the way that the patients reported it and that the agency the v a adjudicators found was contradicted by appropriate medical practice so cross examination would not have added anything when i respectfully disagree mystery on our explained that the treatment he provided was done pursu his training right but that doesn't mean if that's what he explained that the agency adjudicators were entitled to reject that explanation but examining cross examining that affected patients wouldn't have supported that  claim that he was making it was contradicted by the medical experts who said no this isn't medically acceptable practice but there was no factual dispute about what the examination entailed well i think there is a factual dispute with respect to a number of the patients accounts of what happened right but not about the basic right and factors of what he was doing during the examination which the medical experts from the v was not medically appropriate i think it's important to note that there's there was no every every witness from mr rearmost perspective as well as from the v a s perspective agree that there are no specific protocols to be used to examine an individual's genital area all right so there are actions are going to be able to shed any light on the medical question right it would just be a lot of detail about what occurred during the course of the examination but if the question at the termination hearing was whether the basic facts of the type of examination he was performing was medically appropriate or not that that's a medical judgment there were there was medical testimony presented by both sides and the being made its determination the patients aren't going to be able to contribute to that one way or the other right but the patient's descriptions of what happened was used by the disciplinary appeals board to nefarious intent on nursery on those part and that that was a right that may have been true but the basic decision to fire him was made because what he was doing was not medically appropriate as the medical experts testified to well the standard of care is in dispute there are a number of providers dr bigelow right but that you know the patients aren't going to be able to speak to that that's a medical determination that requires expert testimony right so the matthews versus eldridge question about whether he was denied due process because he couldn't cross examine the patients seems to me is answered by that fact their testimony or their cross examination would not have anything anything to the main question in dispute the issue was one of credibility someone would do they said it was unnecessary which was right which is right well and apparently not disputed no it was disputed a number of providers opined that mr around those methods were within the standard of that of the defense experts didn't say it was medically indicated in your client's own experts didn't really support his position they testified that there's no specific protocol to be followed and that within that greater universe of proper protocols that his methods worked and were within the standard of care not that they would have necessarily used the same methods but that his was within his methods were within the standard of care so i think it is important in a case like this where the credibility of mystery on own terms of the nefarious attempt that was intent that was ascribed to him comes from patients who had no complaints with the methods that mystery on a used until they were sent what can only be described as a very contaminating questionnaire explaining to them that they're a victim of inappropriate conduct and more or when the when there are sufficient indeed shove reliability in hand written statements are and hearsay offered by an administrative agency i think that rule holds firm but here where the are you relying on some particular case for this i'm not i don't you're you're asking us to make up a new constitutional law two hundred thirty years into the republic which the supreme court when it had the chance to do it in richardson said was not what the constitution requires the rule is that where a factual determination rate look to tell the reason i ask this is richardson said the agency can rely on written testimony but there's always a safeguard because the individual affected individual could ask for compulsory process to bring that person in la you didn't argue anywhere that i could see that you asked for compulsory process and that that request was turned down did you ask the board to issue compulsory process to bring these people and don't believe that prior counsel did that she requested well that that's your problem right you got this structure in richardson richardson says the agency doesn't have to produce live testimony written summaries will do but the affected person the private person can ask for compulsory process and if there was no request here for compulsory process we may not even of laid the foundation for getting to a due process argument not as richardson  in a criminal case where somebody wants to hold the dead or d of an informant secret the defendant may ask for compulsory process to bring that person in even though only the government or the judge knows that person's name  problem i have is that there was no request we don't know what the board would have done when the board was never  prior counsel sought the identities of the medical records and i think it's clear from the record that she was seeking to conduct an investigation of those former patients that were unknown to reno court has pointed out this morning i think that it is a overbroad portrait the paint that he these witnesses were a anonymous and that he did not have an opportunity to have the due process guaranteed to him well it was how's the secretary or the whoever we're going to isis these disciplinary appeal boards issue a set of procedures that covers things like getting hold of information by compulsory process there is that there is an entire framework and it's in the materials that were presented and then the i have no idea what you're talking the material administrative record your honor i believe it's fight inside believe it starts on page one sixty one seventy five it's a dab we call it the dab framework title thirty eight u s c five provides that the v a may construct its own rules and regulations so my question is are there such rules presumably that published in the federal register something that in fact the dad has no subpoena power whatsoever much like many other administrative agencies can we just focus first on the question i'm asking yes are there are published rules for the conduct of these proceedings they are available online and they were presented to the plaintiff at the time of the administration proceed online were they are they published in the federal register answer yes or no i do not believe so so they're obviously not part of the code of federal regulations that would be accurate so they're basically sacred rules that maybe somebody would be let in on at the last minute the plaintiff was informed of those rules as part of these proceedings in writing yes given a copy a copy sent yes and they and they are part of the record before this courts and what did those rules say about witnesses and bringing witnesses as noted in the in our brief we indicate that the chairman of the dav has  to ok any witnesses that wish to be testify at a sitting both sides in this matter presented their list of witnesses and the dab rule upon the appropriateness of those witnesses if you could use real words right now it eludes me it's the board it's also for the board of the panel it's a three member panel of health care professionals in this case they were nurses who made it with his sitting makers in this proceeding so had had there ever been circumstances where the v a yes allowed witnesses to be called absolutely and there were this the hearing in this case went on for over two days their experts presented on both sides as well as fact witnesses so let me ask you this how how is it possible to really discern from the record where the reanalysis owner missions would be enough to with every single finding by the appeals for appeared to rely on weighing his credibility against the written statements of undisclosed individuals ya know what other words if he was just relying on the fact of his admission and than what the medical professional said why even make reference to the statements by the individuals and place the credibility issues at stake the board nineteen of them says four count one and be on his own admissions there's a whole list of what he says that robbery how is that viewed in light of the five statements is it that he provided where it was some indication that they were sort of i don't know of course is probably too strong a word but somehow their statements were skewed by the investigator he does make that argument that they were skewed and the government in this case goes to great lengths to point out that in fact there are only a limited number of statements that there was only interviews many of the patients provided written statements and use their own words to describe what in fact re on no did to those patients during the examination for know describes the technique he used as an gorge meant technique which he describes it as his placing his hands at the base of the penis and causing blood to flow into the penis the patients describe it and it's characterized really for all intensive purposes as masturbation which is what he what he has done to his patients here and which is what the board reviewing board saw that says so re on his own statements he admits to that he won't call it masturbation he call technique and he minces words as to what happens but it's obvious in the board concluded in their findings that in fact it was the same thing nineteen patients who supported count one these were not in fact anonymous to re on no he was well aware of eleven of them and who they were he in fact submitted a written response as prodded discrete terminations hearing identifying he said he knew who these people were and he wrote put in writing as to why he did not violate in his opinion the standard of practice and i would submit that briana in fact was not tonight had the right to cross whose they alleged investigation was tainted and skewed as support put it the entire investigation had an opportunity to cross examine or could be sent him they chose not to do so i submit that they did not want these people to testify in fact way their opportunity to pursue this investigation vigorously at that level as far as i'm sorry the board did make a judgment and apparently announced in a ruling form that the patients would not be called to testify either side that is correct so we do we do have that as a concrete ruling by the review board that is in fact a ruling by the review board they said it was in the interest of patient privacy i would submit to this court is that the government exercising its discretion and the third prong the matthys test in this case it was to protect these veterans from further humiliation for the debasement right and there was an opportunity for either side to challenge that ruling in terms of an appeal on the other side did that the plaintiff in this case i believe asked several times for the right to have the names of the of the patients themselves and to call those individuals i'm not sure if they attempted to appeal that to anyone bring  a motion in court for example they have that set aside i don't think they did anything like that but the record will reflect a request that he be allowed to call them yes yes there is there were there were e mails there was actually a formal ruling from the board denying that under the guise of patient privacy if you had there been any evidence that the patients would not come forward i mean you know well in fact there were i examinations so those are available and all the all the information that rionda wanted to smith from these patients was in fact in the record ronald made no attempt to call any patient that was negative to him or would have supported the government's position at the time for example brianna didn't call him one the original witness he didn't make no attempt to call and one the original witness went to the walkie police department and complained of being sexually assault well thank you very much the case taken taken under advisement