additional thomas moore presume you're familiar with the records i'd like to get to are the two main points i'd like to make this morning why isn't the board's comment that you're within reasonable bounds of reasonableness why isn't that just a finding that the failure to have in the record the prior offenses and referencing that for rehabilitation purposes and the douglas factors is just harmless error they're just saying well this is reasonable enough that i don't that we don't view that as reversible error are you talking about the testimony that talks about mr ward's prior conduct yes i'm and i'm saying the board found this within the bounds of reasonable this talking about penalty and the and the douglas factors why aren't why can't we read that is just saying we've looked at the problem and i presume that you're seeing the problem as being the absence in the record of prior offenses and reference of that for rehabilitation purposes why aren't they just saying this is harmless error and we proceed anyway i think for at least two reasons greater first raise the postal service didn't do that in this case as you recognize now the board explicitly overturned the a j on that and they're removing for one purpose are they that removing or violating the zero tolerance tolerance policy that that we're now in the in a more discretionary area of what the penalties going to be is that different it is different because because mr warren wasn't given a proper chance to address those accusations he had a significant problem in terms of trying to figure out what the agency was accusing him of actually doing and if you read through the policy and threats and so forth there but now we are in what is the penalty for that does the i'm sick i'm asking if the agency has more discretion in that area and if there is less need to be specific as to what they're considering for rehabilitation one factor of the douglas fact sure and i agree i agree that the agency has more discretion and the board has more discretion and that  aspect but that still doesn't get past the process probably about not including that information in the news a proposed move also this toward to properly address that at the stage well that's partly my my concern it goes even though maybe a little farther than what you articulating i guess the question goes to following up on draper's question the board here through what the ailment a j did at least with respect to the d c deciding officials testimony on prior bad acts and then they said having thrown that out they said ok what do we do not and they decided that we get to we evaluate on our own whether or not the penalty based on this project record was within the bounds of reasonable us it seems to me that perhaps the board and i want to know if you agree applied the wrong standard in that regard i mean when the agency messes up its procedures under the statute you then evaluate whether it was harmful where there are harmful it would shows a harmful error in the application of the agency's procedures it seems to me and i want to know whether you agree or disagree that the words application of the standard now on this revise record having found it was an error in what the agency did was within the to valuate a new under this test called the a reasonable the bounds of reasonableness and i don't it's just struck me that that's the right way to criminal cases sometimes when you see certain testimony come in and even though it's stricken from the record or the jury's instructed not to listen to it or consider it the information is out there the cat out of the bag and it's almost impossible not to consider this and i think that's the important point in this case important point mr ward's removal is that he based on the record the proper record he was removed for one  instance having a heated discussion with the supervisor that's what is the record before the score and that's what the board considered what happened is that the agency had this tried to get this information in and if you lose the government's  the agency relied on and considering douglas factors for example mr o'hara talked about mr ward suppose and ability or inability to be rehabilitated part of the reason he tolerance policy so what's your view of how the board here is it your view that when the board concluded as it did that the book of the a j erred as did the deciding official in the agency in considering these prior alleged acts that the standard then applied shouldn't be ok and now we're just going to look at it on our own but they should have said is this likely to have caused the agency to reach a conclusion different than the one it would have reached in the absence of considering that testimony is that the correct standard that should have been applied that they should have analyzed that just first i think i think that's right and i think you have to give them or less discretion here because of the procedural error in the what's your view that would have just they still send it back for the i mean it's not even clear to me frankly that the a we that the agency would have taken the same action i e we've got the conduct off the table we were let's assume for sake of argument refer me that he can he did what he was charged so we're just looking at the severe any of the penalty is it in your view that it's entirely clear that the deciding issue would have necessarily come to the same conclusion i e move over some lesser penalty in the absence of this committee say that from the cold wrecker judge priest i think if there's one thing you can conclude that the a j and the board would not have come to the conclusion that removal was proper and if you look at all the cases that the board relies on and if you look at all the cases that the government relies on it's red you could see that the facts of this case and when you bring it back to the fact that was what is live for this one heated discussion that lasted maybe a minute or two and you compare it to a case that started by the board for example again this is a board case where an air force employee was removed months after the terrorist attacks and nine eleven because you threaten the supervisor and crew and they refuse to  this strikes me as being a different point i don't understand the basis for your argument that the board would have done the same thing they said to take the bad acts off the table we look at it without the bad acts we still conclude that it's within the range of reasonable and i think the question we're asking you is ok is that the right standard or should the or should the board have sent it back to the egypt which relies heavily on the bad conduct to make a new decision purged of the bad conduct and to see if it would exercise its discretion to remove him absent the bad stuff your honor i agree one hundred percent with your latter point where it's our position that the proper thing to have done in this case is to have a new hearing before the a j without the prior without the testimony about the prior conduct i don't think that's what i was suggesting maybe i the the question is since the deciding fishel testified that he relied so heavily on the bad conduct don't doesn't the board under those circumstances instead of the terminator whether it would consider a family removal to be reasonable under the circumstances don't they have to say ok the deciding for szell's a riginal decision was infected by relying on stuff that he couldn't on not only was it infected by that he said it was important to him so we have to ask the decided fishel to make a new decision based on the proper record have decided official is relied so heavily on improper evidence i think the proper thing to do is to send it back to the agency and reconsider our i mean our our complete position is that you know setting that issue even if you look at the douglas factors and if you look at the evidence that the board considered removal in this case is not proper it is an extreme penalty to basically have a twenty three year federal employee based on the proper evidence is never he hasn't been disciplined before and this is now based on the evidence is properly before this court this is an example of heated discussion and if you look at other cases in which the postal service as it moves employees nothing comes close and even gives your view right that are you saying that just piggybacking on to judge what judge dyke that once this is off the table and we know it was heavily relied on improperly by the deciding to show that we are in a position just saying in the absence of that and to what you want us to anyway the death factors factors but if you look at this case not only were some of the douglas factors just improperly applied in part because of this faulty testimony but there are certain significant factors that were completely ignored and this  mean if i may maybe just one point in terms of the evidence there is clearly before the age in order of the penalty imposed upon mr ward's coworker mr miller in that instance as undisputed this morning honors me please the court frankly neither of those two issues is properly before the court the appellate never raised the issue of the signing officials having considered the prior acts of the of mr war and i admit that i noted that issue as well of looking as to be what why wasn't that issue raised by helen and i think it wasn't raised with good reason and that's because of the court close to the appendix at page four three one four thirty two which is the appellant sprit hearing submission of the statement of facts and issues in paragraph three case is that in every case in part is that if this is the second time that the supervisor in question has quote falsely accused the appellant of making threatening remarks not only that but the hearing transcript reveals that i'm direct exam his own counsel below f e m a s p v hearing elicited testimony about how this is a pattern of the agency and persecuting him that he has repeatedly been involved in these confrontations but none of them has been his fault ok and it is that i guess i'm not following because they said that that i mean i guess that the issue as i see it know maybe maybe you're arguing wave or maybe you're not but we're looking at the board decision and the board decision here evaluated and told the a j you did wrong told the deciding official you did wrong the stuff that you should now consider and then they said ok so we're throwing that out and the question is what does the board do that and my we as the board said in the light of the fact that we no longer have the most of what the deciding  we're going to reevaluate this on our own using the standard of whether or not this penalty was within the bounds of reasons and what support do you have for the position that that's what before you should do that as opposed to send them with that our first answer is that mr ward did not raise that issue either mr ward now wants in his either the reply before the opening brief challenges the board's approach all appellate challenges is either the fact of the misconduct a direct attack on the credibility determination made by the a j or the way the board approached the analysis of the docket spector's but nowhere i mean this is the first time i'm hearing any argument from mr ward that what he's really charging is the board's entire methodology that being said i think that this court's opinion in love chance one forty seven s three d thirty and sixty seven in particular at thirteen seventy four counsels the board to do exactly what it did here and the relevant language from this court was that the proper approach is for the board to consider first whether the agency proved that the petitioner in question and gauged an unacceptable and inappropriate and then to decide whether the particular unacceptable and inappropriate behavior that was proved justifies the penalty imposed by the and that's exactly what the board did the board said let approach in situations where the deciding official was influenced and in reaching his decision by things he shouldn't have consider for example in situations where there are two charges one  one's mind if if the charge that was not sustained in was important to the deciding officials decision as to the penalty it means to go back to the deciding official in the cases after which she has to decide to see whether siding official would reach the same result and that's the question here as to whether that same approach should be taken respectfully are that is not to issue that issue was simply not raised at all by mr ward there is a different question but as let's assume that it was properly raised why isn't it correct that where the signing fishel says this was really important to me the board says it was improper if you consider that that has to go back to the deciding fishel to reach a new decision rather than the board saying well to admit the evidence in terms of the rehabilitation promise permissible and not only was it permissible but the petitioner i'm directing sam put most of that evidence issue in trying to show this giant conspiracy by various supervisors against him and every time he got into a quarrel with them they charged him with a zero tolerance level that's the problem i have with that argument is there are no constraints on what the defendant the employee can do in these cases whether he's petition or whatever but that is what we're  we are specifically charged with reviewing the application of the douglas factors but there is no jesting is that i mean the even the board in this case said no no no you can't do that there was no argument made that while the other guy raised it to we was fair game i don't see where what the employee chooses to argue or not argue has any bearing on whether the deciding official appropriately applied the douglass factors and indeed the board here concluded that he did not that would that notwithstanding paragraph one the agency decision may not be sustained blah blah blah if the employer applicant for employment shows counsel error in the application of the agency's procedures it arriving at such a decision so they showed that there was harmful error there they showed that there was the board agreed that was the question is what do we what is the appropriate course once that error is shown and a here did the board have the right to say ok we're taking all the stuff off the table and then we're going to sit here and decide why we're going to assume the agency still would have reviewed it fired the employee and two we're going to set a six say that if we were the agency we think there was enough evidence to support it it's not like it's the agency that gets to applies the ducks factors at the port right in the first instance but what chance teaches is that when there are we're not talking about when the conduct is proved and what the penalty is we're talking about purely we only dealing with the remedy here we're only dealing with the board review and the review is really restrained as is ours on the agency's use of the douglass factors properly apply the ductless factors they considered evidence and information and allegations that were completely improper and had that been raised we would have argued that the judge the administrative judge properly admitted them as part of the rehabilitation program this is  it's interesting to me that almost none of this was briefed right this is all kind of coming at us and out of this argument yes your honor i was mostly prepared to discuss today why the douglas board now going back and essentially reviewing the penalty in light of the evidence it does have in front of me i have kind of a question on that which also isn't briefed and what is  tolerance means that the removal is per se that is to say that the one zero tolerance of what oh in this case the zero tolerance policy was a is against threats threats of violence intimidating bullying menacing behavior and so so i say i have perceived in the past zero tolerance to be linked to violence and now it seems to be expanding to encompass inappropriate behavior  of some kind and i'm having trouble with that the whole issue in this case is a red herring because even petitioner concedes that is zero tolerance policy was not forced year zero tolerance zero tolerance policy would have been in force  did was looking at the douglas factors he looked towards the seriousness of the conduct in light of the fact that there's a zero tolerance policy against bullying and intimidating and threatening behavior but he w zero tolerance policy violence the threat well it was in this case it was intimidating exactly the the position of his supervisor at most he stood up right stood up leaned over the desk yelled shook some papers pointed at them but she felt threatened enough that she called the postal police she called her supervisor who didn't who testified at the hearing that the supervisor was obviously felt scared and intimidated and all of that was adopted as a credibility determination by the a j and that is virtually unreviewable on appeal and there is no contradictory evidence to show that that to overturn that credibility agent but the point is that the zero tolerance policy here is really a complete red herring because as this court explained in cunningham zero tolerance is when the agency simply removes an employee without any consideration of the other problem with that is that in the deciding official rely on what he characterized as the zero tolerance policy he did but that is only because the dozens factors themselves were wired the deciding official to take into account the seriousness of the conduct and in terms of assessing the serious of the cut seriousness of the conduct he considered the fact that the conduct had been charged violated the zero tolerance policy but he did not enforce the zero tolerance policy and so what what this court is in is what chance teaches is that ultimately what you do is you don't look at the formality of whether the postal service proved a violation of the employment manual you look to see whether the that the penalty imposed is reasonable and commensurate with or in this case at this level whether substantial evidence supports the reasonableness of the penalty imposed in light of the conduct prove it mr s n do you get the impression that there's a kind of a mounting group of concerns with this case you know there's the burden of proof problem there's the consideration of improper evidence and and now there's this definition of zero tolerance is there a mounting group of concerns that perhaps call for reconsideration no your honor because at the end of the day what we have is  credibility of the termination finding that mr ward and gazed in improper conduct that the improper conduct curtis charged that the supervisor in question was mr staff felt threatened and afraid that she was menaced and that mr ward was insubordinate and that in the light of those penalties in line of that conduct the penalty of removal was that within the bounds of reasonableness and it should not be for this court to instruct the agency to reemploy or to retake back or even potentially  dowds last point that the guy that slugs somebody wasn't removed that would be mr miller who was raised in this case again that is just not what the records let's in fact the agency did select the removal penalty but an arbitrator on review decided that mitigation was more appropriate in that case but it's not as if the agency itself was inclined to choose anything other than r the agency continuously gets overturned either by asked by the border by an arbitrator they continue to say well we can still continue to apply that because that's what we do at least at our level your honor with respect i don't think there's enough data to show that the postal service has been continually reversed with respect to its selection of a removal penalty the bottom line is let me ask you with going back to the douglas factors what do you what did the board or what do we have all of the one factor problems of rehabilitation all stemmed from this conduct which we now know he wasn't allowed to consider so i don't see any one thought at least anything that the deciding official gave us in terms of the possibility for your honor to be signing official testimony is that the appendix at one thirty three to one forty one and a page one forty one you explicitly testified that he considered it he considered alternate sanctions and found them to be inappropriate i believe you also  inappropriate was because he thought this is a good chance of this happening get and the reason he thought there was a good chance of this happening again was because in his own investigation he had concluded that this was an ongoing pat but not only was that issue not raised as a grounds for reversal here but the evidence that the petitioner put into the record himself demonstrates that that is true it would be harmless error the evidence that petitioner put forward is this continuing pattern of supervisors beating up on him for no reason but of course where there's smoke there's fire and the deciding official found and that's what exactly you are suspicious to walk just in or doesn't raise that issue that comes out worse for him if we focus on those issues on that there is have so you're saying are and with all due respect to my colleague the postal service repeats an error that the a j made this just on the stood up here and told this panel that mr ward pointed in a threatening manner at supervisor because that no place in the record will you find any evidence that he gestured here and that's part of the problem in this case second going to she testified about that she did and if you look through the transcript there's nothing about documents it doesn't show up in her testimony it shows up in the agency's closing argument the second point is that if you go and look to the case of chance and i was just cited by mr sounds and and this goes th overall theme in the harmful air aspect of this case this path this court wrote that when dealing with big and general allegations of misconduct such as in this case the improper conduct that we have here before us today judge bryson wrote writing for the court the board must look to the specification to determine what conduct the agency is relying on as the basis for its proposed disciplinary action in this case the agency wants to charge mr war both with the most minimal violation of improper conduct such as walking out of the room and the most extreme zero tolerance policy and when the most extreme aspect of the charge falters they want to fall back and say