her good morning it may please the court your honors i'm well aware that it is a somewhat unusual thing for an agency decision to be set aside but respectfully this i believe is one of those cases because it represents the kind of circular or tautological reasoning that should be avoided and that the court should not allow there is a nexus analysis that's required in these types of cases and that wasn't done here the standard is not simply oh there are criminal charges pending against this federal employee and that's the end of the story that isn't the end of the story the agency has to prove a nexus between the efficiency of the service and the alleged crime that didn't happen here there is no connection articulated between the alleged offenses and mr cooper's job other than just simply stating in charges i mean the nexus seems pretty much apparent given the difficulties with firearms issues and employer workplace violence well when the conduct happens off duty and no one's heard it's not considered an egregious egregious on its face other cases do a better job of actually making the connections and connecting the dots well that's all that may well be true that they didn't seem to so i think official can write better decision but we're not here to to to do a you know check on whether they've written the best decision but whether it's just sufficient in the word found that there were substantial evidence to show that both he that the there was actually concerned that the deciding official had expressed that he did not take into account the nature of that conduct is being off duty at all the judge the mr judge expressed concern with that  done insufficiently it's simply a listing of mr cooper's because you know it's the position description and then saying and again in a tautological fashion the deciding officials loss of trust justified by the criminal charges justifies a finding of nexus that's just saying that you know loss of trust because of the existence of criminal charges is enough and i don't think it is why isn't that enough because every predator well you were a federal manager and you know one of your lawyers had been indicted on weapons charges wouldn't you want them out of the office because you don't trust them well respectfully your honor if i'm walking on the street outside you know my house and i somebody's attacks perceive that and i reach into my handbag and pull out a gun and hold the attackers advanta the police come and then i get a notice of proposed suspension from my job saying sure but in your hypothetical you're leaving out the fact that the state of maryland indicted him right numerous weapons charge not the i mean include corporation that into my example if i hold somebody an attacker at bay until police arrived and then the police come and they get it wrong in the arrest me because i'm the one holding the gun which is what happened in this case i don't the indictment happens i don't get to testify to the grand jury and say this was self defense i'm going to be indicted that's what happened with my client only at the criminal trial opportunity to say this was self defense and make that argument so in my example i hold the attackers at bay the police come and arrest me because i have the gun i get a notice from my job saying you're going to be suspended because there it is criminal charges respond to us i go when i say this was self defense i got the right to respond right he got and say that is something that's in the agency looked at that and said we still don't have sufficient trust to i'm sorry they had the video where they they had the video also teddy's home but if again but if it happens if in my analogy if i go in and say you know this was self defense here's a video showing part of the incident that shows that it was self defense and all i did was hold these what were the police came and then i get a suspension notice like the one my client got that says i reviewed everything and because of the charges you're still suspended and it will promote the efficiency of the service it's like what duration of the criminal trial but where was the articulation of why and what it has to do with my job it's not a case like in that donington case where there's a border patrol agent who is hard to get sexual in that this is your case i don't and why isn't it and there every time there's a criminal charge for anything arguably it can i think it depends on the nature of the criminal charge but again this is not something that is potentially nonviolent or the grand jury indictment but of the agency wasn't aware i mean the order of events was that there was a notice of proposed been issued before the indictment then there was an indictment and then the agency issued the final notice the final decision but there was instance but it's very problematic and i know that the henderson case exists i think it's a problem because at accused doesn't testify before the grand jury the grand jury is going to indict but it doesn't protect my client at all or me in the hypothetical scenario when i'm arguing that the police and got it wrong and in this case the administrative judge recognize that there were very serious discrepancies between what the crime report said occurred and what the video case law is pretty clear that that arrest is not enough donington says indict it is even though as you say indictments quite commonly occur without the defense getting getting to supply  information i had actually not been fully aware that there was an indictment here but i was sorry to ask you neither was the agency until i got to the fact that there was some kind of i think i think which i reached for it to as a probable cause determination during that was he he was he was being held for two weeks close to two weeks before he was released yes right so and the charges here were a couple of reckless endangerment  assault first degree and second degree unsolved plus the disobedience to the police officers which the deciding official said he more or less was discounting because that just didn't happen and the video supports that new and saying involved on its on their face potential for harm to life why isn't that enough for the agency to proceed and say not only is there reason reasonable cause for criminal conduct that carries a possibility or imprisonment but also that indefinite suspension while that it's being circumstances which is stunning to me explains it's not a great idea for the agency to be required to get too far into of course it's just not a that would not be a good idea to do a full blown investigation but what i would like to see and what i wish occurred in this in this case and in every case is an actual analysis in other words an awareness of what the standards are going through and saying ok well this was off duty misconduct referred you know these reasons i didn't believe you at your you know what some part of what you said that didn't happen here there was no analysis and probably because the agency didn't know that they had to do one they didn't know that they had to say ok this conduct was off duty official i think it he said it was maybe his only instance of discipline and he also admitted as the judge pointed out that he didn't know about this off duty thing the crime you know there's a reference over and over again in this case and with the deciding  testimony to the crime provision there's a there's a misconception i think that you know the crime provision allows just when there's an arrest in charges that that's the end of the story without a nexus but there are there usually there's usually a nexus done and that's analysis done and it's usually better than the one that the administrative judge included where he just listed the position description which i thought was rather unremarkable it's usually something more tailored something like what i said  well and the douglas factor analysis which was asked about at the deposition i mean that was incorporated when he was asked at the deposition what he was relying upon in part he said that douglass factors if you look at the douglas factors checklist it mentions the fact that in his position it's a position of trust and so you know i think there's it's not simply the fact that there needs to be a a statement nexus and then  additional analysis could there have been more said in the in the final notice i think sure but that's not what is being reviewed here i mean it's a substantial evidence standard and what we have here is  and the fact even that this went in front of the circuit court i mean who deals with felonies so i think all of this as the administration ministry of judge recognized certainly lends evidence to the fact that there was the agency felt a loss of trust at that point in time why his it that he was in subjected to removal proceedings after the crime with little after the criminal cr well i think that could always have been a possibility but i don't personally personally have transparency into why or why not that in prison these were already agency policy is here is it sort of to just go to magically follow what well i think that there have been cases and i'm not particularly pointing to army cases but there have been cases given the differentiation between the burdens of proof in a criminal case versus what we're talking about here where somebody could have been found not clearance are bunch of other things that could come out of a criminal trial that the agency could then look at as to hear the decision of who to see policy well i'm not aware of a policy specific policy or regulations that would affect that particular decision but that's not i mean as you're aware that's not the decision actually it issue here i mean he was found found not guilty on most of these charges there was one that was declined to be to the indefinite suspension i think in many i think the system really worked here when you look at it i mean the agency had serious concerns about these criminal charges they did not you know they you know gave the notice they went and they provided two written responses they provided an oral meeting in person and even though the initial notice said that only seven days  notice could be provided because he was incarcerated that period of time he was in reality he was given approximately thirty six days of notice before this final decision was made so i think just based upon all of the evidence in the ground or in the sort of knows nobody is arguing the thirty day notice provision but in the briefs part of the argument has been some sort of rush to judgment that all the agency is doing is looking at the mere fact of an arrest and we think that when you look at all of the evidence and the fact that the agency has met with the individual in person review to written statements i think that certainly counters the point that there's been any sort of rush to judgment in this particular case we might add in addition to the probable cause determination there was actually in this case a grand jury indictment eleven nineteen and we have reported to that in our brief so again we have both an independent judicial officer providing probable cause determination as on eleven of the twelve charges but then even before the final decision a grand jury i meant now i think it's probably correct that the record is not clear whether or not the agency was aware particularly of this superseding criminal indictment in the circuit court but again it charges well the reason why we're mentioning that in the indictment you can imagine a situation where there has been a notice there's been probable cause findings and it goes to for example in this it had gone to a grand jury and there was actually a no bill i mean that's in happened in this case the the case proceeded further than what we have here so i'm certainly i'm just pointing it out to the fact that it's not as if in between when the notice happened in the final decision one was made the state of maryland somehow decided that there actually was no probable cause at that point and and if there's no further questions we ask there for an to be like boilerplate notices that just use certain buzzwords like they just say promote the efficiency of the service or they see the words douglas factors we don't want to have that type of situation because we're not looking at each situation case by case and it denies federal employees the minimum due process that they're entitled to but if you look at these notices there's some cutting and pasting from the crime report but there's nothing tailored to the individual situation at play here there needs to be something more than just well of they've used the words failure to promote the efficiency of the service or the words douglas factors you know were said we shouldn't be having on our computer no computer is just boilerplate documents and we just change the name of the employee there