and convincing evidence that they would have taken that action independent of the protective disclosure that contributed to it so the from the defense was lower price will needs to be addressed if you sustain the so as i mentioned under the derby a p s a because the judge found that his protective disclosure contributed to his removal the agency bore the heightened burden to prove by clearly and convincingly it would removed him regardless of his protective suits closures and we contend that the ministry of judges analysis both contained legal and error and factual finding t his detailed or his analysis of the charges in his car one analysis and we contend that should this court adopt that position it essentially has made car one unnecessary and that cannot be the purpose of car one sustain the charges is a different legal analysis for a different purpose in this case it entails a do novo review of the evidence  standard and current one is to analyze the strength of the evidence to see whether or not it is so strong it convinces the it clearly and convinces convincingly  meets the heightened burden for the agency to show it had independent causation the ministry judge erred by relying upon the fact that the materials before mr gibson were luminous but he never goes into  addressing the quality of the evidence before him and if you review the well developed records you can see that much of the evidence that was before mr gibson and indeed before the m an independent causation and we contend that they mistreated judge ignore the overwhelming evidence that showed that the evidence used to support the remove all against mr robinson should have known about and prevent well what's interesting about that that is they admitted their culpability their direct culpability  not pulling out e mails the knowledge came after mr robinson had been placed on leave that's when the agency attained knowledge that these low level subordinates were not performing their job duties so in that case my argument is that those points upon learning in may june and subsequent time in twenty  were promoted they were reassigned they they just went about their various sides there were other  however the board did not sustain the scheduling issues for which she was removed upon appeal mr curry was removed shortly after mr robinson because for twenty years phoenix had was wide known as like a hospital with increasing enrollment in twenty twelve they had eighty three thousand unique patients come to try to resolve what had been longstanding monetary and scheduling issues going back to i think it was the ninety's when the decision was not to expand the campus and keep it land locked  so this was the i g new congress knew everyone known for years did did he know that as he was working to fix the scheduling issues that people were sticking things  work arounds with scheduling issues and i think it was this and three on the east coast so certainly one of the things that mr imus and i did at the end in the twenty seven the remedy is to have a constitutionally proper process so they could certainly free for her and her forward looking as he would be reinstated i a do over and then he has an opportunity respond to a whole new procedure it's a whole new proceeding and what would that what would it be about that new proceeding to give you comfort that now there would be a few decide not sort of because you know as you as you know from our car through analysis and also in our due process they chose not to remove so many other supervisors in fact no other supervisors couple of different types of arguments that tie into that the first one is that mr robinson response was not given meaningful consideration by mr gibson and the administrative judge address that and that specific claim basically turned on a credibility determination do you agree that the constitution required mr gibson to give meaningful consideration to the response yes the clevelanders requires it's minimal it is an opportunity to respond has to be something and exactly it has to be some kind of up to respond that's actually heard but in this case that issue is a loan that that single strand of robinson's response only mr gibson could address that and testify credibly cording to the minister the judge as to what consideration he gave it so that was sort of one strain of the due process argument the positions raised and that really that's part of specifically gibson testified that he spent several weekends poring over the quote poring over the evidence he stated that he quote got into the weeds on disciplinary matters recognizing that they affect not just the agency but also the accounts and that he did not take this case lightly he quotes the mr gibson quite a lot he took his evidence to review the evidence including the appellant's response and granted the appeals request for an extension to respond showing that he was willing to deliberate at his own pace and resist any complaints about the ladies he testified that he did not treat determine the outcome of the case and gave it a lot of deliberation i this continues i found gives him to be a thoughtful credible witness in addition i know that he did not sustain one of the  in charge three i find that he considered the record as a whole and kept an open mind so that again goes to one strand of the due process argument that petitioners raise this is also raised the idea that right so this is two aspects to that one also ties in to credibility because mr gibson and badly denied having made that statement and in fact i have to quote what he said in his testimony because it's sort of very memorable he sa when i was seven for out he was asked about the new york times article he was specifically asked about whether he made that statement he in fact leads and ninth saying and saying quote this isn't my first rodeo i've got more sense than that  credited his testimony that he did not make that statement to the new york times did not prejudge the case came at the case france's extension and emission judge found that he gave meaningful consideration to his judge applied that test and looked at each of the statements that right dented by they've by the petitioner and found that all those statements those of the president as well as the congress members simply indicated that individuals who were found to have committed wrongdoing should be removed but they didn't prejudge whether mr robinson in fact had committed wrongdoing that was the issue before mr gibson as the proposing and then deciding official that was the the the decision that he made and then of course of the immediate supervisor for mr gibson to come into the situation say i'm going to take control i'm going to be the proposing official make sure that this is looked at carefully and then it would be i think having made himself the proposing fishel actually would have been a little bit odd maybe to make somebody i mean he was at that point was the acting secretary i think of that he had to make somebody else the siting official maybe put them in the weird position of having to overrule someone much higher than them so again it's not i think it's more that you have a different person then proposing in deciding but it is it happens that there is the same person that is the proposing and the siding fishel this was a high visibility case it was a person involving a very high level person so i think mr g visibility i guess another word for that is notoriety which i think is discuss in your itemized in goggles can you explain why that ought to count you know the penalty and don't  politicians highly concerned about something maybe pressures are felt that might divert from a very clear eyed fair course right and i think do care has to be paid to make sure that doesn't happen and if there was evidence of that happening that would be a bad thing but on the other hand i think that it is it is right that i was in his that is one of those factors is appropriate that when a particular act of this product brings really shame upon an agency i mean this is our federal government we want our citizens be able to look up to our federal government be proud of it and it is it is harmful to the agency's ability to be effective going forward if  that's much better way of saying i was going in that direction but yes and so i think it is fair as you know to consider that as long as as long as you care is also taken to make sure that that just didn't result in the administrative judge's reasoning to find that it was clear it was clear and convincing evidence that this action would have been taken even if mr robinson had highly placed official in the department is accused of making misrepresentations or you know accuracy is i forget the exact to the overseeing legislature and another high or high ranking official doesn't have a motive to protect the institution going after just doesn't have a motive and then just on that one particular finding  to to take action against the person who's harmed the institution by going against him personally but somebody comparably high stature in but there were these other ones the mr judge that i'm not even sure i would find that this was inaccurate statement or misrepresentation to congress but it was it was a very specific disclosure of eight misrepresentation well i think your honor that case actually is a really good example of why this is different that implicated the v a s management so that's a very broad thing that reflects on the entire agency as opposed to one individual's testimony that it was not mr gibson's to tell you and say you are and i guess i would just say with all due respect i i think there is a difference between a disclosure that highlights mismanagement of an agency where yes another high level agency official my sort of take that that reflects on him have some other great motivation to retaliate versus a very specific just closure that an individual made a statement and it's not the individual that's being alleged to be taking that credibility aside we don't even have to go down that road to address the credibility of the decision maker because it's not relevant to what what were the factors as deputy secretary granted as counsel says it started off will investigate and take action if warranted by the summer twenty fourteen as we're in the received the proposed remove all this is going to get held on appeal and granted he he did deny saying those words at hearing but he also testified he could remember what he said the report are well not to die and that he spoke to the reporter and and he also never denied his other statements three porter about how removing rich were quoted in that same article  mr gibson would allow the agency to move past the wait time scandals of twenty fourteen and that their continued employment had served as a distraction that's car two right there that is you need the objective looking at all the facts and circumstances and not just a self serving testament here and by someone who may not even realize it's a conscious bias which is  in this day and age of fake allegations that fester for years and to hold that against my client when there is no evidence is quite a disservice and