decision on a terminations from employment by a mediator of the e e o c and the arbitrator was john dorsey and he found in favor of the fees the attorneys fees and michelle lee and his initial decision he denied and we requested reconsideration and arbitrator dorsey denied the reconsideration there was no analysis under the criteria of the pay act there was no discussion and we believe that arbitrator dorsey's the situation was arbitrary and an abuse of discretion under the standards which apply under the backpack the federal back pay act if an employee is a prevailing party and prevails on reversing my personality decision and i'm warranted and unjust of my personal decision then the employee  entitle to an award of fees under the act in and of the standard for the interests of justice and before arbitrator dorsey in the petition for reconsideration we did that the e e o c in response to your request for reconsideration really made two different arguments against fees one was that they weren't justified under the interest just a standard and the second c does not press here no your honor there's nothing in the record that would indicate that and that's the problem in terms of the decision of the arbitrator an arbitrator is bound by the same standards that apply to the merits of to protect and board in deciding this plenary actions that are appealable to the board which this would have been an adverse section and so he could not just arbitrarily deny the feast with out applying the law that applies under consideration for fees before the merit system protection board and because we requested it under the federal back pay act he would have had to have conducted an analysis he could not just say oh well i deny it he has to conduct an analysis and that is the law that applies before the board in consideration of attorneys fees and i i just want to make sure and her stand with that and that analysis would entail but that would involve its termination of whether it's in the interest of justice to provide those fees which would in turn  or to look at the ellen factors to understand that that is correct that is the correct standard that must be applied and that is the reason his decision must be reversed because he did not conduct any analysis and therefore his decision was arbitrary and it would be an abuse of his discretion not to conduct any analysis i believe that that was made very clear and done and also more certain which we relied upon in our appeal in our petition and i believe that the arbitrator could not possibly just deny it and not assess them says allen factors and in this case we believe that traitor hast to a dent up by those things which he believes would have would have prevented the award of fees he must analyze its decision in terms of the application of the al factors and i believe don was very clear about that that you must actually look at the factors in light of the arbitrator's decision so he couldn't just say i don't want to award fees because i don't believe they're there warranted he would have to go back and review his decision and point to those things i believe that that's necessary otherwise how would one ever know what his basis for denial was  that what factors in his decision led him to reach that conclusion and i believe the thing you just said give me it's polish are you suggesting that in deciding whether the ellen factors apply or not he is limited to things that specifically he has noted in his decision that is correct and that is what diane pointed out that don't was more a situation where the court was saying that the arbitrator could not changed his mind as to some factors discussed in the in the award as opposed to looking beyond the go pretty far beyond just the question of whether the person was in permissibly dismissed and you would almost necessarily be discussing things that would necessarily be permitted  arbitrator once he's finished with the decision on the merits to say ok now with respect to fees i have to look at some different things that are different from what i looked at in deciding whether this person should have been fired and these other things i now will discuss and if they aren't embodied in the opinion on the marriage that's ok isn't that are i don't believe that that is the law and i don't believe that that would be consistent with don or morse and i believe that both of those decisions say that if the person is the prevailing party you cannot then start going a few eld of the decision that was made because if you did that you would start to be you could consider things that were totally outside the universe of what had been before the arbitrator i think that that definitely would not be consistent with allen which says that the standards are whether or not the person prevailed on the merits or they were substantially innocent of the charges whether or not the agency's action was without was wholly unfounded and all the other criteria under alan how would you then start bringing in matters that might have occurred post hearing  decision i think that if you did that then how would parties ever defend against such a thing because they would not know how would they have the opportunity to come forward and say oh well if you you're you know mr arbitrator or hearing officer don't consider that factor because we have a defense against that it would be an enormous trail so i think that the ruling and anand morrison a very consistent was saying that the arbitrator goes back with a hearing officer and looks at the decision to determine whether the criteria and the interest of justice have been met because it should be in the four corners of that decision whether those criteria have been met and that's the basis for an award of freeze and i ask you to try to help me understand the chronology arguments about whether the diabetes issue and medication either did or did not account for the behavior on the day in you seem to be saying that although he has diabetes and his medication may have caused excessive sweating however on this day the witness statements are evidence that mr hamilton was not experiencing extreme side effects from his medical condition your honor if that is the supplemental appendix i do not believe that was that was prior to that was evidence that was prior to the arbitrator's decision and it was not up for consideration on this explanation for the behavior during the day but maybe if you had maybe the deciding official having been given a sensually the opposite view was acting reasonably in deciding to remove because the only on the table explanation for this behavior you on behalf of mr hamilton was and was not the explanation went on i understand that question however that was not up for consideration in a decision on attorney's fees because there arbitrator's decision  most relevant of the allen factors is whether the agency is action was clearly without merit is wholly unfounded but if the employee substantially innocent of the charges because it really not matter what deciding official new time of the decision to remove i believe the morrison and honor instructor won that it does not and it is the decision that must be looked at it to determine whether attorneys fees are warranted as i said if you could go back behind the decision then you would be it would be endless you could you could go back and really argue the whole case but once the person was the prevailing purdie then from that point forward you're looking at the decision to determine whether or not the allen factors were met and in this case there was no question that mr mr the union where the prevailing party they prevailed on the merits and he found that the agencies action and the charges were not substantiated i think if you look at the appendix beginning at page twenty through twenty five and in that that is the arbitrator's decision where he found that he did not uphold the agency's charges he also said that if that the employee had a one time event and he could make that finding there is no question he could make that finding that the employee had a one time event but he said that the agency submitted no proof that the employee's behavior had any negative effect on the agency's efforts at reputation that the the society official failed to to to assign the correct burden of proof in terms of the aland the douglas tractors so that the arbitrator made findings which supported and and an award of peace in the interest of justice even if he had decided that he thought he had this medical of app which he said he believed he had a medical at that doesn't substantiate a denial thesis because you don't have to prevail on every issue let me let me see i understand your your legal argument here fully so suppose that the arbitrator had said all right i am cognizant of the fact that i really need to explain on the fees issue the reasons that i'm denying fees so he first decides the case in your client's favor and says based on the evidence that pertains to whether he should have been fired i hereby find that that evidence is insufficient to support his firing and then he says and i'm going to continue because i'm now going to turn to the question of is an answer to the question of fees i conclude that even though it does not  bear directly on whether he should have been fired or not i think the government in this case the employer was acting in good faith and there was that there was significant basis for their concluding that he should in fact with that be all right even though the fifty push in of his opinion did not relate back to the firing portion of his opinion but it did because the employer doesn't have to prevail on all the issues and i understand what i'm trying to to posit as a hypothetical in which the the judge you're the arbitrator says i'm now going to move to fees and in discussing fees i'm going to discuss factors that don't bear on whether he should have been shouldn't have been fired and going to discuss only the question of whether the government acted in bad faith and the other alan and that be all right that would be all right because that is that and alan factor and i understand that and i may have misunderstood you previously but that would be ok because the arbitrator or deciding official i'm sorry the administrative hearing officer is not going beyond their decision they found  evidence in the record both within the arbitrator's decision itself as well as within the appendix materials we provided let me ask you a question picking up on judge toronto's question to your opposing counsel in the submission that was made initial submission that was made on by the government in response to the motion or reconsideration of the government argues two things one that under the allen factors there was no basis for first the award and number two under the regulations there was no basis for a fee or do you defend the argument that the regulations themselves provide an independent basis for denying a fee award what respects the collective bargaining agreement yes no that is not what we're arguing so not only is not what you're arguing i mean i'm really asking do you think it's correct or wrong the then how do we know since those were two independent grounds that were submitted to the arbitrator for denying fees how do we know that the arbitrator didn't rule on the basis of the argument that you made that the regulations themselves are sufficient basis for denying the arbitrator's decision was silent with respect to the collective bargaining so we don't really know that the arbitrator didn't accept your second argument  that has conduct was excusable due to a medical condition that mr hamilton himself disclaimed as the arbitrator stated at page i believe his appendix page twenty two that mr hamilton consistently throughout the proceedings stated that he did not believe he had a medical condition and the arbitrator found that that mr hamilton because he never asserted that the arbitrator was the one stating that this medical condition  language is show the reasonable path to determine how the arbitrator reached its decision on a journey that goes to the question of you know i could see a recent past with the allen factors but if i don't know whether the board relied on the collective bargaining agreement argument or whether relied on the allen factors how do white how do i answer that how do i know with a clear path was the court could just herman the clear path by again looking within the four corners of the the but the substantial factors here clearly show that none of the factors are met or i'm sorry the substantial evidence because arbitrator importantly didn't say that that she disagreed with everything that the e e o c said he disagreed with three specific points of the three specific charges in total three specific points he otherwise he fully credited the testimony of mr hamilton's coworkers with respect to the language that was used against his insulting that his behavior that he fully credited mrs johnson and testimony regarding mr hamilton's decision or i'm sorry his and he did not disagree is certainly with the assertions that mr hamilton failed to follow a direct order and so all of the arbitrator's findings separately again with the exception of three specific point and he says first there was insufficient proof hamilton directed racial epithets epithets personally to either mr or mrs johnson none of the interviews with the johnson it's provided support for that charge it says second mr and mrs johnson statements and i'm sorry second this mrs johnson statements and our testimony at the arbitration hearing do include the charge ms hamilton hit mr johnson's lake and for what there was appearance physical changes in speech strongly indicated and intoxicants and he says at page ferals final determination contain no proof that hamilton's behavior had any negative effect on the agency's reputation a prime importance there was no investigation or consideration and milton's unusual behavior that day was caused by his obvious medical condition i do not believe that the arbitrator in any way in this decision upheld the agency's return you know determination that  standards that are required in the under the allen factors and in denying attorney's fees is isn't a is arbitrary and it's an abuse of discretion i do believe that the decision contains the itself you did not rely on the medical conditions to explain the behavior is correct that is for ok could i ask you one of the other question  in your argument in your brief you argue essentially two points one is the one that you just made which is it was an abuse of discretion to deny fees in this case and the other argument as i read your brief is that the arbitrator at least should have explained the reasons under the allen factors for why there was a denial now the latter argument i didn't see you make to the arbitrator in your motion for reconsideration is that right yes yes we did yes we did idea argument that the arbitrator should have given an explanation as opposed to that the denial of attorney fees was an abuse of discretion oh no we did we set out in the reconsideration before the arbitrator because he had not given any reason in his decision they reconsider argument that it was error for him not to have given reasons i think i did i want to i didn't say i want to be i want to make sure i tell you the right thing i