he was highly decorated in fact i believe he may have been the most highly decorated during that time period through a confluence of events in two thousand and eight he was transferred into administrative duties had people calling him a thief had his supervisor revoking some of his security privileges to take those on from self the supervisor and was trying to get other people to close a criminal investigation and blame it on officer conti which would be a crime he resigned his position after discovering all this in the beginning of october two thousand and eight and prosecuted appeal of that as a constructive discharge what's before you  two thousand and eleven petition for review of a two thousand and nine initial decision and i know you've probably all done the math already that that's some two and a half years after the decision so what's really here isn't on time when timeliness issue as we look at it between the parties was the appeal filed time we are not and if not was there are reasonable excuse to a half years clearly at a time so we look at what's excuse why two and a half years and what should this quarter do as opposed to what it's done in other cases where it's looked at on time we filings and i think that there's two very distinct reasons why this case is unique and no other and provides officer cantin with the remedy that he should be able to make his case before the work with all of the evidence in hand that he did not have below number one in november two thousand and eight the board issues an acknowledgment order that requires among other things the parties to produce all relevant material evidence the agency produced nothing the board's regulations at the time white lies provided that the parties had an obligation like rule twenty six of the federal rules of civil procedure to produce evidence that waiting for discovery by the agency produced nothing so we have an order and we have rules no production unlike in an involuntary resignation or retirement case what would you expect the agency to do by way of an initial production since the agency when that appeal is first file does not know what the basis for the claim of involuntary is going to be initially scratch its head and wonder what it should do in this instance officer conny issue to declarations indicating the bases for his claim and within the next week the board responded and said well he's produced virtually nothing no e mails no memos no part of the file at the junction of that filing when the agency took that position that nothing existed knowing what the claim was i think that's where the problem arises because now that you know what the claim is did you know what the order says and you know what the rules say i believe that at that point the twenty six i just want to make sure that you and i are looking at the same document explain to the agency what is meant by the documents that are relevant in material in part yes we are what so i guess the problem is the topic  doesn't say evidence that might go the other way in indicate we shouldn't have taken the action it seems to me that what the agency is required to do and then the last one is definite evidence of past records that are going to be relied upon for justifying the agency took the action i don't know it just seems kind of clear to me based on this and then the ation is that it doesn't say any evidence that goes either way favoring or disfavoring the action it sa evidence supporting the action it seems to me that what is required is not for the agency to conduct the kind of broad discovery that occurs in general litigation but rather for the agency to have to provide to mr the type any evidence it intends to rely on to support it well i can respond i think in three ways to that because i understand how you're reading the judge first it was clear from the declarations submitted by officer carney that he was a a number of personnel actions taken over a period of some five or six months so in terms of the actions that were at issue in the case that it was very clear to the agency what those actions were and it should have been providing some discovery on those actions and we can get to the provide a copy or description by category of documents in its possession to support its claims or defenses the agency's defense was you've given me no emails or memos or documents or nothing and  i think that that's a little misleading to say but i happen to have them in my file here but you're not going to get them and the third point is all of this is just the order none of this addresses the discovery regulations which  the rule itself no can you say it again to be more active than that seventy three federal register one eight one four nine dated april third two thousand and eight and it says in adopting these discovery regulations were trying to be like federal rule twenty six so i think while we could debate the level of discovery that that would require it's something more than nothing and it certainly is in my view improper for an agency to say i have these things in my file that show your supervisor was approx now a convicted felon sentenced last month by the way that he's a crook i have documents in my file that contradict the investigations we did of you but i don't feel like turning them over and in fact when you go into the ira appeal files later in two thousand and nine they did the same thing which is also in the record they said there are any documents well they did that for two years and what i find disappointing is that my client is in a position it's a real cruel dilemma for him of going round and round in a circle of under the cases he's got to provide new information to make this appeal additionally the information has to be of sufficient weight to change the outcome so because the agency that weighed things in didn't do its job my client is in a position of saying when do i have the new evidence and is it sufficient with sufficient and material to change the outcome and it puts him in this the wimmera not because anything he's done it puts him in this the whim of because the government has decided we don't want to do what we're supposed to do we don't want to wait again fairly what troubles me about your argument is that the discovery objections and ultimately the objections to the decision of the initiative judge against you in this case were not presented in a timely of addition for review  there was a request for depositions and some discovery by my client in the constructive discharge case and it was denied in what was in november to december of two thousand always a discovery that was request i believe he characterized it as women did discovery of the agency officials taking the action against him including depositions and and that was denied and you didn't lose that in the record as i did not did not say ok that's wrong thank you to the m s p that i think that that's true judge but i think the problem with that is that kind of puts puts a burden on petitioner to know what's in the agency's files and what they did or didn't do and again it puts him in a position where on the one hand there's affirmative obligations that weren't met and on the other hand it says it's ok agency you can violate this order and you can violate your own regulations that's fine but petitioner if you didn't appeal an order which is binding on you and you can take issue with it without having the basis to take issue with it because you don't have the documents it's  in this instance for an untimely basis you've got to have evidence of some weight something to show why that was meaningful and what did he have at the time to show it was meaningful he had no idea why they were doing what they were doing he knew only there was an me please the court we respectfully request that court affirm the board's final decision which the petitioners petition for review as fire untimely without the showing of the cards it's important for the court to keep  is the order of december first which responds to mr conti's counsel's motion on november sixteenth which is a motion for an extension of time to conduct described for leave to conduct discovery with the judge to in that actual requests he counsel actually said there were specific employees that he wanted to depose yet there is no information in the records who were to reveal one fact he issued a notice recollection so presumably at the time when he made that request for an extension of time he had in mind what was he wanted to propose but rather than issues and nurses depositions she did nothing rather than put his mercy basically on the ministry of justice for after an indeterminate amount of time to conduct discovery with the ministry of ministry of judge said in their order on december first was simply that you are the holder of the best evidence here you resign from your position  your burden to prove that in fact the discharge or the excuse me the involuntary resignation what such that that was involuntary and i'm going to see a new c b s obligation in such a circumstance to conti had a problem or disagreed with the minister of judges the discovery rulings he should have issued or excuse me about a petition for review in a timely manner he did not do that because he didn't know it was th jurisdiction issued his first response under section a believe that was on december second two thousand and eight them page fifty eight of the respondents in appendix in response to what he alleges the sixty seven paragraph the agency responded and simply refuted those allegations did not include any additional evidence simply refuted the allegations then contrary to what mr conti is asserting for this court today he did not file his supplemental response on jurisdiction with the additional thirty seven paragraphs until december nineteenth so the fact is the agency simply used the evidence that mr conti alleged in simply refuted it and that was enough for the judge to find that he did not make a showing that his resignation was in fact involuntary that's what happened below he should have at that point in time as he had a problem with the initial decision and disagreed with it issued a timely petition for appeal instead of what he did on june third two thousand  ira peel which is still pending before the board during the i repeal he actually filed motions for discovery in which he got all of these reports of investigation subsequent information about his supervisor who just referred to as  can all of that if the record shows that he had most the evidence and it's not that i by july two thousand and eleven yet she still sat on his rights and did not file the petition for review into december fourteenth or fifteenth he sat on th information for almost six months so i think the record is clear that mr conti was not diligent in providing the new evidence which he fought and what he's trying to establish the cost of reopening his  it he should've been one with this information here and that it would have been reasonable for him to run back and file the petition when judge moore i don't think there's a set number of magic number if we did we probably all would be sitting here sitting here today but this of course is up on time in two cases i think are instructive here in the daily caller versus department of justice in that particular case a petition review was filed untimely and in that petition preview what they were trying to on december second i think it's our appendix i'm paid seventy sixty four specifically notes and he was aware that he was under investigation he knew he was under investigation so he could have simply spada motion for discovery and did not to request to mention to determine what exactly that timeframe is but i say you know six months is extremely before there's already case law that has affirmed that a six month you know waiting time is not sufficient  it's also important to recognize too that mr conti was well aware of the time limits here and we look at some of the alonzo factors the fact that he was notified of the time and there's no discussion here that he was in there is also the existence of circumstances beyond mr khan to control also isn't presented here in the record and in the degree to which any negligence was shown in terms of the agency or mr khan here the board or anyone is also not present so con cause for his untimely filing and also just briefly to response two to two separate other arguments that mr ponti made he had to say in his briefing that he was a victim and that his constitutional rights were denied leaning that she w frightened notice an opportunity to be heard the border response that's simply not the case i mean he had an opportunity at the lower level to engage in discovery incident there's no evidence in the record at the due process being an opportunity to be heard however i think it's missing the phrase a meaningful opportunity to be heard officer conny is not implying that the agency was withholding documents he's stating it outright i think there can be no dispute that taking the position that there isn't evidence when you have it and in the irate appeal taking the position that no documents exist and then we find two years later that they have them is really important let's get a flavor of this they claim that officer conny had a conflict of interest but it is a seven seven seven they have a document showing that the company he worked for on the outside was not an importer and essentially means there is no conflict do we get to deal with that at the hearing now did we get to show that the investigation was a sham because they had information suggesting that their own investigation was wrong no did we get to talk about agent who can being a crock now one thing that troubled me in the agency's argument is saying essentially it's the petitioners burden to show jurisdiction i do defense work i would love a rule that says that as a defendant i don't have to give plaintiff information because it's their burden of proof i don't really read the order that way i don't read the discovery regulations that way and i think an order is an order and will serve rules and agencies are obligated to go by them and obey them and they did it here and it put my client position of having to choose what was the right time in july two thousand and eleven he didn't have most of the documents he got twelve hundred something pages on a rolling basis at the agency's timeline to give him that information  to see a violation of the walls as an abuse of discretion a violation of the rules is arbitrary and capricious and can overturn a good cause determination on that basis there's no deference on a matter of law