i did want to start with the comment that it's a relatively unique fact pattern i don't know whether the honors that run it what i certainly haven't run into a contention that the supervisor took a dive and as opposed to being punished and the significance of that is that facts that would otherwise appear to be supportive of a punch in the context of something that's frankly the other side of the coin which is a dive  without a motive and judge stevenson says there is no motive and i don't want to address that without a motive it makes no sense unless there's a motive by mr good to set up terry then who would go ahead and take a dive the evidence w something like one hundred ninety eight or one hundred sixty eight grievances filed over a very short period of time so there's a lot of hostility between union and mr good and a lot of that hostility was directed towards terry and the witnesses reach the decision we would have reached if we were the triers of fact in the first instance we we are reviewing that record and we're reviewing the record for substantial evidence absolutely your honor and i recognize you're not in the position of being the close to what what errors are you principally focusing on i start with your honor because it's in the crux of her opinion she goes through different estimates from different folks and then she go the crux of her opinion which is on page eleven of are opinion she is struggling with what i'm going to do with different versions of events and then she tries to go to ok i'll go to objective evidence to try to figure out who's telling the truth here and objective evidence she goes ahead and talks about given the fact that several witnesses saw bruise on good faith shortly after hearing that as we speculate made it plain wrong there was no testimony that mr good had bruising bruising he said he got punched right up here the top of his nose nobody saw that the only mark anybody ever saw was a red sheet and mr leno was the one who went headsets by about a red sickle frankly a red cheek is more consistent with the fact it took a dive and was lying on his right side is more consistent the letter he received in response to pose noticeable i have gone ahead and quoted to excerpted to the court the notice of proposed removal and in terms of he has ten and respond on page twenty eight of my brief i quoted verbatim in its entirety where talked about you may answer this proposal within ten days from your receipt of this letter either a person or in writing or both to ricky burleson and mean i can put it in the mail in ten days there's nothing here that says it has to be received within ten days i think frankly the most natural reading because there is a poll because there's a postal address that posting it would be sufficient at worst it's ambiguous so then the that's actually somewhat consistent with the way it's written here which i get and i would submit is ambiguous in terms of which way it should go the government argues time out all we need to do is give them an opportunity under a lot of men we just need to give them a reasonable opportunity and an appendix one hundred twenty postmaster burleson it emitted that that february seventh letter at least the way i read it made an admission that that was ten days after receipt by the you hinge on you put in the man when you can also count and i say the government didn't make this but i was trying to do the counting this morning on which is that the other mail box will that we use that you don't start counting until the next day i mean typically at least  the legal world if something is done if you see something on the twenty ninth but there's a filing on the twenty ninth and you have ten days you don't start until the thirty that's thirty if they want and so here you you you presented this argument in your  the board i believe i didn't see any evidence in the correct pages decision the question of the timeliness of every seven letter had been nation correct my understanding of the way that this was raised was that it was there hasn't been any fact finding and then for example i was wondering whether or not i mean walk through what apply and i didn't apply i wondered if this is a contraction situation where you would have gone through referendum or so so i in terms of an at a minimum your honor we would be requesting that i would point out what the record of and i'm not sure that is necessary for two reasons one is that again postmaster burleson understand it wasn't a litigator issue that in his testimony yet that was ten that would entitle you to a harmless fair hearing right that would go back to the heart of that one as opposed to the ignoring the responses and also removal i agree that that argument is the amish are aspect of things morning your honour's and they please the court all right the scorching affirm the board's ruling for two reasons first substantial evidence most notably the testimony of numerous agency witnesses that the administrative judge found credible supports the board's conclusion that it was more likely than not that mr darrow didn't fax right mr good what's the government's position on the on the mailbox true i always thought the rumor was that they  some statute said otherwise or some specific notice said otherwise is that your understanding of the rules i believe that's correct your honor i think the issue here is that the notice words make your response how would you know based on your regulations of it that she is required well the record reflects and this specific case your honor that mr doe had an opportunity to actually acquire he still is doing where is that the idea well at least mr hickory his union steward was in communication with mr burleson who reminded him mr burleson reminded mr hickory that the ten day clock was running if there was any confusion at that point as to whether or not the response had to be received within ten days or mailed within ten days to a certain ample opportunity for mr hickory to clarify that this is strange information or facts beyond what was already there in the letter which is in the record it a one seventy eight basically made two claims one it said that there were several inconsistency in the witness  upon which the agency were alive and determining that mr del it struck mr good but there was only one inconsistency it identify it was a statement by mr barnard that mr darrow had kicked mr good in addition to punching him yes but i we won't know until you talk to people more about again he states that here and then later in his testimony he states that the letter added nothing to the facts that were already in front of him  determine whether or not an error arises to the effect of a due process violation that the court has to consider whether or not it would have had any effect upon the proceeding if it wouldn't it can't rise to the level of a due process other other than asking mr burleson on cross examination that or that he didn't present any affirmative evidence that in fact his training as a professional boxer would have certainly resulted in bruising or some sort of more tangible or is your position that well perhaps there might be an ambiguity but he had an opportunity to inquire well are our position on or is that the letter is unambiguous and that it's within ten days the response mr burleson that he was going to submit a response actually scheduled a meeting to discuss the allegations in the notice i'm supposed to take place on february third how you're placing them now you're saying there is an ambiguity but it was the obligation of mr  said within ten days right that's correct you may respond within ten days and you may respond within ten days in writing by mail because it says to ricky burleson with a postal address that's correct and it's hard it's hard not to read that to say if you mail it within ten days you're ok  certainly that's what it says is that that's not an unreasonable reading of the notice but again it's just like interpreting a contract well i think while you're here i can certainly decide that it is ambiguous and if it is under principles of contract interpretation if there is a patent ambiguity and it's upon the contractor to raise page right that's what happened here well i apologize your honor and what and what what you get for that is not a complete redo but you gotta herman opportunity an armchair show right and struck me when you in your grief by saying well there was no harm procedural error here you're actually conceding the violation of the war then when you're denying him a procedural error here i apologize your honor and the board to it more again the reason i said it's not on all fours with ward is because in ward v deciding official on the board recognize that he's outside ex parte communications about incidents not in the letter to enhance the make it very difficult if for agencies to conduct any sort of removal actions if they can't have any sort of background knowledge about employers when they're considering adverse action against them this is not a case in which mr burleson it says in the face of that so the record evidence that we have is that the union received a letter on january twenty ninth and so if you start from the twenty ninth most counting rules you would sunday so even if they didn't put in the mail on that sunday but rather put in the mail on monday the eight that would be the tenth day and so we have sort of consistent with what we perceive to be at worst an end in big u s regulation practice recede for government and we were to construe it we thought we could construe the language in burleson letter to your client giving the ten days as actually telling you need to respond