minus if you read the or the transcript of the poor reply that you supplied to us earlier this week it's pretty clear that the union understood that there were two charges being presented to the deciding official just the union official argued for mitigation based on douglas factors which would only apply to the second specification not the first right that's correct so i assume what you're basing your view of only the room in the final decision right i don't see how that's really tenable when they say all basis of specifications were sustained even though she concentrates or he concentrates whichever on the willfulness one well the arbitrator at the hearing indicated that she letter that way but that's that my problem is i've read this transcript a couple of times through these relevant pages and it seems to me that you're all talking past each other at various points i mean you can read  then what are we supposed to do here i don't think that you can find that the that the agent the i know that's your point but please answer my hypothetical which is i conclude that the citing official sustained both and that in colloquy the agency did not specifically waive its right to rely on the second charge well the i r s before this court on page nineteen of their their brief says that that to be sure only the willfulness issue was briefed and argued here so i think i think that supports again you're not answering the hypothetical what do we do if i find that that second specifications has been preserved and the arbitrator should have decided that if you make that finding i think that you could remain the case to the arbitrator in order to give both parties an opportunity to present their their evidence before the arbitrator on that issue you don't think the arbitrator as some power kind of implicitly made that finding by imposing a penalty for negligence which is what that charge was based upon i don't i don't think you can on page three of the arbitrator's decision he if not a finding a willful neglect and what is the appropriate remedy that's right but it would what what remedy issue is before the arbitrator if the only thing he's supposed to decide this w  doesn't that implicate simple negligence that would sort of justify with the arbitrator has done the the notice of proposed rule included  other laws rules and regulations and again it's ambiguous whether the decision letter actually removed her on that basis but it's clear in that that the parties agreed at the hearing and at the arbitrator that in his reason to say i didn't see anything in her the transcript of her or response where she really disputed that it was more directed to the removal of the ultimate penalty and the like i'm not sure that we can draw any conclusions when there were some references in the union brief before the arbitrator to whether or not she actually owned the business and so if it hadn't been agreed upon at the hearing the arbitrator asked so i have to determine whether or not she will fully understand it her tax return and before that i recognize the union representative said the only issue is with those and the union or the agency representatives cracked and the arbitrator says and no other charges that we're dealing with correct that seems pretty good for you but then you follow on and just a couple of lines later on the next pa mr dialer who is the agency rep right says not that's part of the problem with not having the deciding official i don't know what that means i mean i could go on to the second part if i had her and the arbitrator said it's pretty self evident what does that mean doesn't it i mean can't you read that to mean that we don't need to deal with the second part because she's already agreed in her settlement that she was negligent so there's no reason to go forward with putting on proof on that second issue i  look i think you have that argument i think there are arguments on the other side this transcript makes almost no sense to me so i don't see why we can decide how we can decide this and just shouldn't send it back to the arbitrator because clearly the arbitrator thought that even if he didn't sustain the penalty on the first one which was an up or down penalty everybody seemed to understand that that he had authority to discipline her for something else and the only thing could have and the second s cation right well i'm not i'm not sure that's right and what's not i'm not either i don't understand what the arbitrator did here but we have to assume that he thought he had some to impose a lesser sentence and the only basis would have been the specification the second specification not the first because i think even the government agrees that on the first this specification it's up or down if it's willful she's out our brief and there the board sustain a portion of the one charge that was before the board and then imposed a penalty on that basis and the court found that was improper or well if we only had one charge here you would have a really good argument but we have two charges one of which could have supported the lesser penalty the arbitrator imposed so why isn't it just as likely that that's what the arbitrator meant i don't think it can be just as likely the whole issue we've been talking about and you know you keep referring to the issue and page three of the arbitrator's decision it's absolutely clear to me that what the arbitrator of saying is that when you know i need to decide whether her filing was the result of willful neglect and then he goes on to say if not i have to decide what is the appropriate remedy so obviously he thought there was something else before him that he would have to address if he concluded that there was no willful neglect and that's what the the bulk of the opinion addresses is still something that has to be considered i think other parts of the record your honor suggests that the iris agreed that that if that the arbitrator determines that her conduct was not well of that that medication is not is not on the table and i think that and the i r s counsel's opening statements which appears around page page forty three and forty four violation when you only the agency can but again that's right but your honor if you're referring to the willfulness aspect of the first there i want to be clear in terms of specifications versus reasons and that's one of the aspects i want to be clear about terms of what we're relying on here she's willfully violating something she's out and there's no mitigation by the board or the arbitrator right yes that wasn't sustain that's correct your honor and so all we're talking about now is whether you present the second one in everything here including your letter the agency's very thing the transcript and stuff but what we have to decide i think that's a lot for us is reading this very confusing transcript this whether you've waive reliance up in the hearing before the arbitrator and saying we're no longer rely on that we're putting all our eggs in the basket that will put us right in your honor i would like we acknowledge the transcript is not a model of clear that's not good for you well it's there are some mixed statements in there in terms of what about reason one and rate reason to with respect to specification warning says quote unquote all true but the failure was the result of negligence i'm sorry i'm you're on twenty eight and twenty nine what part are you talking about it's the section titled find clearly adopting or sustaining charge too and it would be really reading those rendering that language meaningless to say especially in light of the arbitrator's continued analysis of if not multiple what do i do next not negligence was in play i think there you have this closing agreement or misspoke knowledge of the finding and final and binding agreement she said i did act negligently with respect to these two thousand and actually there really was no factual contention that she failed to pay these taxes so everybody was focused on state of mind that's essentially that that was the thrust of the entire hearing and you had a lot of colloquy back and forth in that testimony back and forth on ultimately you have an arbitrator who is chast under douglas with if he's not clear stipulation in contrast to the issue about going to miss you had a very clear stipulation of the i r s saying we're not going to we're not going to say that this claim is barred in its entirety due to latches that's very clear based on the record but then you have the  been some offset under the back pay act had she presented that information but it's not in the record and i'm not aware of what happened with that in terms of an offset for outside earnings well isn't that potentially actually done if we all mitigation different if he did i mean i know he didn't phrase it this way but it seems to me that what the arbitrator's done is by the clever away all round our ban on blanket time served  penalties by imposing a short penalty period but then just saying i'm going to you know find the rest of it are by latches if you just said you know the removal here any mitigating factors and douglas or failure to mitigate actual damages if you get it i agree with you clearly the back pay act requires mitigation of actual damages but there doesn't seem like there was any evidence of misconduct well your honor i guess it would sort of be comparable to another situation in which a representative or a councillor and an agent and does something that adversely affect his client's interests and in this instance does it is charge and the alternatives are and don't get caught up in whether it's charge or result of such as haitian i think we all know what we're talking about right and i don't think if those few lines on one page and the arbitrators thirty page decision which itself start out on page transcript is an understanding between everybody because of the settlement letter where she agreed that she was negligent that really you didn't need to go into the basis for the second one that she had met at that if that's the case then you would expect a full discussion of whether she whether she committed the acts there and whether it should be sustained interest sustained and then went on then propose the penalty he thought was appropriate well we think that the transcript shows that that the understanding was that that the evidence would be presented only on the on the wilderness issue but but even even assuming that the arbitrator properly reached those other charges