well next call appeal number zero six dash thirty fifty nine allen versus united states postal service suppose removal which is in the record at fifty five if you look at what the site official said at that time with the charges what they were concerned about that does not comport to what was later given the decision in the letter to remove all kind also later said in the testimony that harriet i don't i don't follow your point at all any legal instrument that conveys a charge whether it's a criminal indictment or another sort of legal instrument has to be read top to bottom in a lawyer like fashion for all that it says and it seems to me it doesn't matter later what some witness opines as to the meaning of the document it's a it's a charging paper that subject to being construed by by judges by by us but it says what it says and it means what we decide it means and the testimony of a postal official about what he thinks it means i wonder if that isn't isn't entirely beside the the decided fish was telling me here today because there was no jurors who say that i think of his opinion he basically says well you know when you start saying when somebody you're basically says and then you restate in your own way he would i mean if it's the same  charging people it says exactly what the black and white characters on the paper say and what the a j found is exactly what actually said now if you want to quote something out of the eighty's opinion fine but don't tell us what you proposed removal it talks about in those paragraphs on page fifty five it talks about you didn't pay your credit card those are those two paragraphs where it talks about not paying your credit card when mr allen came back to the deciding official said i did pay my credit card i paid it back months ago before you put me on leave back in september that the credit card was paid off that's when the removal ever came and said yeah if you fail to cooperate with the  give us information on timely basis and you didn't figure to her credit her timely manner that was the basis for changing the reasons for why mr allen was terminated and the ministry of law judge adopted and withdrawn but this notice is not very clear that there are four separate specifications is do you understand that these number one two three and four correspond to what the parties viewed as the specifications yes yes i think if you specification number three years is the is the idea that he was that he was paid these amounts listed in three and that he misused those funds because he didn't promptly rule and to the paragraphs it says at the data write his letter in january two thousand and one you have not paid back your government issued id so so what and and if i understand the government's brief they're talking about forty four dollars that he didn't pay back wasif you might consider the type hundred dollars that was paid to the internal revenue service right yes but i don't i'm having trouble seeing how there's misuse of more than six hundred dollars and yet all the opinions here talk about a misuse seventeen hundred dollars or whatever what's going on it will it makes a difference i would think in terms of where there's been a serious thousand he paid forty seven hundred dollars there was a forty four dollars forty four and some strange issue difference so the government designer stan is not contending that that initial payment was too late or that there was  a misuse of funds in the period before the initial pain i think there was no evidence that to the contrary of the check was actually made with the answer to the the answer question is yes but that's not the contention you know that kind of contention without such so it's it's the failure to me the full pain until several months later craig right and so the result of that according to specification number three is he had the use of forty four dollars because his wife wrote the wrong amount on the check and the misuse of five hundred dollars which was sent on his behalf to the i r s yes that's their contention so that that doesn't seem to square with what the administrative judge directed himself to nor does it seem to square with what the proposed notice up for removal and the actual decision on the full address they seem to address the larger map agree i think that what happened was evidence that was when the there were four specifications initially i said and one two and four were dropped but when the hearing was held i think that the post office brought in and discussed those evidence from those other four specifications and initiated law judge said look at all this i think there is misuse when the only issue was a piece of number three which is the forty four dollars and this the five hundred sixty three dollars in taxes and what mr allen's so just in response to judge banks question and you were never you never had any doubt did you that the decision here we spaced on the failure to timely pay forty four plus the five hundred shot when he didn't get the money in the first place well i'm confused by your response to john approach question i thought you were telling me that he was removed for misusing a larger amount not the forty four dollars plus the five sixty three i think when when the initial charge i maybe i make the fees on the articulating well enough but when he got the national charge that's what he thought mr allen thought oh they're married if he was removed if he was removed for misusing forty four hours and the five sixty three that's one thing it was removed if he was removed from misusing seventeen hundred dollars that's another but what was your understanding of why it was removed i think m that's holder mentally why his removal was sustained there was a misuse of government funds but the problem is that the amount in the reflected in the agency decision and the amount reflected in the administrators judge's opinion is different from the amount that the government now claims was misused and i agree i don't know if that is correct i think that mr allen when he went to fight i mean often there's a discrepancy between the proposed notice to free will and the actual reasons because that's that's normal because the employee comes in between time and offer some clarification but it was was that was so i'm talking about the decision to remove him and you know and they decided to remove it was on the basis of the forty four plus five sixty three that's what the administrative judge was looking at the terms of charge and the basis for misuse of postal service correct yes and i think that's what we're looking at here and i think i have a confusion between that the proposed and the final most right where does where does the final decision talk about the forty four the five sixty three in the on page forty eight i think in that paragraph it talks about on the first paragraph of that page sedition when he talks about the that site official says that you failed to pay your your government credit card in a timely manner result in your charge privileges of being ca you talks about the amount being past due was thirteen forty six forty seven which he had which he admits in that letter that that was not correct at the time you just didn't know because mr allen had not provided documentation thing the post office contention was that you know i get your ok so let me ask you about that and that is that let's assume hypothetically the postal service cut a check for the entire mom but they said in the the lope there was a note from the i r s saying you just got six thousand dollars from the postal service and you've got to send us five hundred back because that's what your deduct your required dropped from the money  would you still be then contending that he did not misuse full service from i would because then he has a choice at that point where he could say if i don't pay the artist bill i'm going to be taxed and paralyzed or i can pay th and now or i can decide to pay the credit card off completely i'm so even though the postal service gave him a check for the entire amount because they are that mom once he received it was subject to i r s deductions you're saying that that doesn't count but he was required as all of the tax payers are to turn around and cut a check to the i r s your position would be it still was a postal service funds because after i got the money i had to pay taxes on it so it doesn't count as postal service funds that were paid to the employee you know i don't think their play were postpones i don't think at that time to get he received money for reimbursement for expenses that he had in their relocation so it was his duty to put in his reimbursements it was his duty to pay back his credit card it was his duty to pay his taxes but he wasn't misusing government finds what happened was he got the money back and it's his decision that they took the taxes o you hypothetically if they had taken the taxes out that's my hypothetical if they had not taken the taxes out so they actually cut a check for the entire amount but your client knows that he was required to turn around and write a check for the five hundred sixty three dollars to the i r s withholding would you still under those circumstances be contending that he shouldn't be charged for misuse of funds postal service funds for that portion that he had to pay out t host i wouldn't you know what not and that's because any time you pay money to the i r s that's not the taxpayer's discretion and therefore that doesn't come to the taxpayers money  theory of it is that it is taxpayers money but he has the choice at that time to pay the taxes or he could pay the critics to pay them which one he would have to pay but i think your answer to my hypothetical was that it wouldn't make a difference it seems to me when you're saying it's a difference because we have the choice then you are saying that if the postal service had given him the entire amount and he himself had paid the i r s out of that are you saying that under that circumstance we could he could be charged for misuse of government of postal service funds or not you're i don't think so because he still he still has not taken money for himself and misused it first of all personal gain that wasn't very my definition i guess so what if what if you're a federal employee and you have typically you have health care deductions and you have a life insurance deduction what if those are automatic and so the postal service cuts them a check for six thousand dollars but that's minus four hundred dollars for health insurance and for life insurance would you say that he can't he didn't really get the money from the postal service and so he can't be charged with using anything more than the actual net that he got after those deductions were taken i think that the thing is that when he got the money when he got that check for four thousand seven hundred forty four dollars if he would have taken that money and used it himself or for use it for any other purposes and i would concede the forty four dollars was not paid by me i'm not talking about that money but yeah but the time counselor required to check in yes your honor were you able to communicate to the court to that i saw the clerk when i came it when you were on route were you able to communicate with your office to call the court and i simply told them that i was stuck in traffic could they know you were doing corded nine thirty this morning while i would advise you not to ever let it happen again you you're not responsible for police activity on the beltway but you're certainly responsible to try to communicate at the earliest possible time to the court that you're unable to be here when required by the court all right let's get to the  argument your honor mr allen was on notice that he was charged with failure to his credit card late i'm still confused as to the amounts here  don't have seems to me that this decision here isn't based soley on the misuse of the forty four dollars and five sixty three do you agree with that ok so he was the decision is based on the misuse of a larger than yes your ok is that a problem in terms of sustaining the decision assuming that we agree that a charge of misusing the forty four dollars on the five sixty three could be sustained but he was charged with misusing a larger amount and the decision was based on misusing a larger amount and that the charge of misusing a larger amount is erroneous but it would be correct to charge him with the misuse of a smaller amount can we still sustain this the court may still sustain this it's still it would still be a misuse of government funds and a significant amount every month about six hundred dollars your honor are you agreeing that there is zero evidence of misuse of anything above six forty four or so no no your honor no mr allen there is evidence of the misuse of all of the dollars represented by the larger figure ye mr allen was reimbursed the amount of forty seven forty four on february eleventh two thousand and eight further found mr allen did not apply those funds to the credit card until the end of march so for six weeks he was improperly full service funds at that amount still only has to do with the forty four and the i r s so he was required to immediately apply entire amount of the check to his government credit card and that's the forty four dollars forty four thousand seven hundred forty four dollars but he applied all except forty four dollars decided card as i recall the i r s but not for six weeks here on earth will signal you did deposit the check until march twenty fourth and within a few days he paid off the forty seven  timely manner is and the failure to lie funds to their credit card once proceed are so intertwined that while they may be viewed as two separate specifications simply the failure of a credit card on time is a necessary element of the charge misuse of funds in other words to mr allen month by month in paying its current on time it would have quite literally been impossible for him to misuse any of the checks because they would have been history he can charged with that credit card the court the court may accept the post should accept the postal services position that he was charged not only with failing to fight these funds to the car late but also that he was problem here in this case from the beginning is that there seems to be a difference between failing to pay your credit card which possibly could be grounds for misuse of government funds this employee was not charged with a form that is failing to pay his credit card on time he was charged with misuse of government funds right there are seems to be caught up on the actual title of the charge but but what chance and progeny allow the agency to describe the charge in the notice of proposed remove all the entire charging document must be read the charge of the title the charge itself need not be read in  vacuum and mr allen's argument is that i didn't know how to defend myself based on the notice proposed removal but because failing to pay the current way was a necessary element of the charge every because mr allen see if i understand what you're saying you're effectively saying her underlip chance at least as you read it we should erase from the charging document the language about misuse of postal service folks we should act as if that doesn't exist and we should look at the rest of the document which we usually labeled the specification and consider that the source of his notice and case is to give me a complete fit because every time i read something more about it hear something more about it sounds totally different than it did five minutes ago i'm in the post to work i'm given a credit card for the i'm going to move i sign an agreement and i'm clearly instructed that i have to pay the bill on the credit card the same within thirty days of receiving the bill whether or not i saw or received reimbursement if i right now i charge a hundred dollars on the credit card the bill comes i don't pay it we're at day thirty one have i misused postal service phone yes or no yes how so this is according to at least one it was p v decision cited in the brief tommy brown misuse of a government credit card is a kit to misuse of government property i never meant funds that's the way toward it in that decision so there is some precedent for that and of common sense and economics yes how i have misused the postal service is money when by day thirty one i haven't paid the citibank credit card bill of one hundred dollars economic harm to the postal service is that they forfeit the rebate they i do not know in this case precisely what happened at the very least it affects the full services credit rating if you want to view it that way it may affect the mail rebate they're able to negotiate the future well i'm you know i'm just a simple minded farm kind of work from concept the funds money owned by the postal service that i as their employee  misusing because i didn't pay the bank back based on the credit the bank extended to me it's not the postal service money seems like it's the bank's money but they're so i may be abusing the bank but i may be misusing their funds but so far i don't see that i've missed used any funds of the postal service because i didn't receive any funds or any credit from the postal service help me out the postal service may not realize the financial harm immediately upon that late payment however if if the postal service were not allowed to remove puts who did this and many employees felt it was on the no no it don't don't don't give me a lecture about the policy ban employees of course bit employees should be removed but it has to be lawful we're trying to understand if it's lawful i'm trying to understand how the dollars flow and as far as i can tell you're talking nonsense your honor i'm where is the postal service money implicated in my hundred dollar charge that overdue in the terms the postal service is able to negotiate in the future with the bank harm to the bank you understand f harm to the reputation of the postal service the charge is misuse of the funds of the postal service however the postal service only gets reimbursed first on charges which are allowed and so charges which are not allowed to meet the rebate i misspoke ok so they may not get the rebate that they otherwise would get because i paid late but it is possible now what evidence was in this record that rebates that otherwise would have gone to the postal service didn't go because allan paid late there is only testimony in the abstract from the deciding official at the joint appendix one thirteen or fourteen that the deciding official did no whether there would be a particular specific rebate he was it speaking generally so i can only point you wouldn't be part of the postal services burden to show that a rebate that otherwise would have flowed didn't flow precisely because month after month for quite a while allan failed to pay the bill no your honor the postal service need only demonstrate that it may be harmed financially and likely will be harmed financially if it allows employees to do this or not come out of poison general we're going to a one man who didn't pay within the monthly billing cycle but the then the court would need to decide that because because it would take hundreds of mr allen's to possibly impact a full service in a real way that one mr allen could be allowed to i would think it wouldn't be that at all i would think the contract would provide quite clearly the contract between t s a on the one hand be ever the postal service and citibank on the other hand precisely what the consequences are when there is late payment for nonpayment in the monthly billing cycle by one or more government employees i and if the contract says the rebate won't be paid it will be subtracted from the gross payment sent to the government then you could approve the harm by just putting the contract in the record you didn't do that right that congress and other writers directors let me try to put this back together again and let's assume hypothetically that we find the concept that you've just been discussing with the chief is a little too strapped to absorb and therefore it tell me if i'm wrong what i think we are left in terms of this case under the charge misuse postal service phone is the fact that the poll the postal service paid him if you don't co taxes a certain amount of money and he allegedly took too long to deposit when he deposited it in paid his credit card off it did not include forty four dollars plus five hundred sixty three dollars to the also an aspect of that lack of diligence of holding on to the check for one month period without any excuse and that's holding on to government funds and not deposit if that's all we are left with is that the government's position that leaving aside all the other stuff about credit card payments outside of that period and other times leaving that aside that he still would have been removed for simply the misuse of government funds in connection with that one check for the third time to work articulate what the heck he's doing and why i think your honor i believe there isn't enough testimony from the citing official that makes it clear that he would have that that i thought you just well need before that that you know you know you didn't know whether that was and he didn't speak specifically to that circumstance but reading his testimony in the totality i believe the court may be able to do you think our case law supports and if so what cases support our being able to say even if we don't think there's substantial evidence to support one of the charges we can still sue except that the sa put it this way suppose the deciding push will say you misused five thousand dollars and it turns out that the only evidence is a misuse of six hundred dollars ok just hypothetically and can we  sustain the discipline under those circumstances without knowing whether the deciding official would have reached the same result about six hundred dollars as he did about five thousand dollars because court i just can't bring up two points that were discussed with in the record on the appendix one forty one the only evidence about when the deposit the check was deposited morphed mr allen there was no evidence other than answer if you could do you buy that that this problem seem to be happy theoretically is the charge for misuse of postal service funk and the narrative which includes failure to pay charges on time is it your view that it matters in other words if it's our conclusion that this should have been call misuse of charge account for says misuse of pocket should have had misuse of postal fun plus misuse of charge card why does that matter if your view is that it does when the whole narrative which is supposedly the point of this is to give your client notice about when he first responded if the whole area whole and the whole narrative discusses in detail the issue of late charges and so forth is they were really a problem by calling exclusively misuse of postal funds and not adding and also late charges otherwise i think so i do think so because when he was given the post removal in january his sole responsibility to the post office was look i got it wrong it's critical because that's what they were upset about and then he finds out you know we're upset about a lot more when he got the letter removal and that's what i think the problem all right thank you the case he submitted