depending on on the factual basis notoriously disgraceful conduct can lead to disbarment but what does that assertion mean other than that some facts might involve ten now but the stigma of this this is a lawyer this is a government board and charges like this should not be what we make here what bothers me about this is the word  and and it seems to lend itself to such a broad spectrum that i'm just replying that's why we're here your honor if this were a case of jaywalking and a three day suspension it wouldn't be here but this is  with the suspension of the reason given for they don't spend twenty hours trying to analyze how this all came about his an hour job to to critique the choice of label and she didn't gauge and a certain kind of conduct which was decided to be wrong reprehensible she was given a feeling minor penalty and so is it isn't for us to say well there must have been an inappropriate vote here was the line reprisal but the basis we're looking at what they did and they suspended her for three days yes right that's correct i'm still are we looking at whether or not that's just suspension under the standards of car the strength of the evidence to support the cause the action taken by the agency yes your honor to judge if you divorce your conduct as described so important in normal civil service laws and in process rights respond and then in the decision stated the reasons upon which the agency realized the reasons are not necessarily the same as the facts for the circumstances the reason specificity of what it's talking about in terms of what the offense of the green just conduct was here so you're saying if the label went here would we not be here i was so that's probably true saying if i'm correct is that the label itself is a form of country it is and that's why in the ayres case in the madison case before the board said when the agency cannot shore up the charge that it makes against the of the boy it was a poor case it's a sign of overreaching and overreaching goes to the question of reprisal and the board did not address this unfortunately what the board did was mis characterize our argument by saying that we were somehow no arguing that the prohibited personnel practice was in confirming the charge from unbecoming conduct which we found about in discover process that leads an inference of reprisal that's the board's obligation to resolve in the i don't understand i mean maybe i'm missing something about how things were done in the argument you're making when you went to the office of special counsel now i think you're telling us aspect did you raise that with the special counsel or your honor if i understand your question did we raise whether or not the case would have been brought to the special counsel had a different way  no much much in is due to raise with the special counsel that this so called reprisal here i thought you would said to me earlier if we were talking about a thirty three day suspension that was labeled something else we would not be here we are here because they used the phrase notoriously whatever did you so that's your the basis for your alleging that this was retaliatory your honor and if so what did you raise that issue with the special counsel you know what are said what action when you see the actions you see it doesn't matter the label doesn't matter with respect to the special counsel what matters is they suspended her for three days that's correct but now you're telling us here that the suspension for three it would have been no less retaliatory the reason it's here given the fact that it's a short suspension and all these resources why is this so important to her it's not a suspension of three days for i use the far that's not an issue that i'm questioning here we're talking about what the allegation is of retaliatory conduct and if this label were put out there and she had been be that that it's the label that demonstrates retaliation and that's the ground men of your complaint of retaliation then i suggest that that should have been put before the special counsel that's not that is one factor the action itself would have still been retaliatory whether the enormous investment of resources would have been made you're telling us though that you could not raise the label before the special c is clear and convincing evidence that it would have taken the action it's a question of overreach of the agency goes so far to charge a government where with the tortoise we discourage will conduct and they can prove it where the board doesn't find that they prove it because perhaps the board didn't properly analyze it that is a factor that goes into the analysis of the strength of the agency's case if the agency can't prove the charge that it made then under c retaliation if that's the basis that you're alleging retaliation here before us how can it be but that's nothing that you would put before the special counsel you say the action because i assume the answer is because the special counsel and action would for retaliation a whistle blowing is based on the personal action that was taken out of that personal action is a three day suspension or that personal action is the title you put on the whatever it is it should have been the same in terms of the allegations you made to the special counsel in the allegations you made there there's no difference there's no difference there's a difference in our car and the action that was placed before the special counsel was started out with mr johnson complaining about what he felt was only by contracting last year at the san diego they will office how this all got started so you don't go to the special counsel to argue i would special counsel doesn't have jurisdiction been a little bit unclear i think that what the board understood it to be is concerned that you're not answering my  i'm sorry could they have raised it in front of the office of special counsel i believe they could and i think they did in the sense of saying we think this action which had a specific title  was retaliation however we are not involved in that process that the documents that were in for the office of special counsel are not part of the record we have one document in the record that shows them deciding to close the notoriously disgraceful conduct because because there was this element of the conduct that when you say they're not defined does not make i don't think you i don't think so your honor because i think those  standard as opposed to i think that i think the key is that it was well known in the agency that it was conduct that was undesirable but it was it also had this quality of being well known and we describe some of the w because she had been told not to tell anyone about this interview so she's talked to a colleague first to encourage her to talk to her past what is the range of penalties for notoriously disgraceful conduct the range i think suspension of three days or even less perhaps you know i think it may go down to reprimand i actually have it in my briefcase but i don't have it right here in the pony other words not over three days was within that range  penalty for notoriously disgraceful conduct included something as relatively minor as a three day suspension yes what's the penalty for there must be a regulation and i guess the question earlier that for new hoarsely disgraceful conduct of conduct unbecoming or anything else there are ranges yes there are specified ranges that's correct your honor and i just don't find troubling that an employee of a civil service employee of the united states can be charged with misconduct it's so vague that you can't describe it but i think we can describe it your honor i mean i think those words have plain meeting meanings and as i said fairly unusual i understand what the what the court is feeling but the record reflects that this incident was quite extraordinary and the interest described feeling very intimidated during the interview and frightened clearly and more  she perceived mr johnson as trying to get her to admit that mr bradley was abusive although she felt this was untrue she said the questioning made her feel dirty and she felt trapped throughout the interview she thought about jumping out of the car  said in her statement she describes that her heart was still beating fast from this experience when she returned to the office one of the navy's which conduct unbecoming notoriously disgraceful my understanding is that they felt it it described the circumstances better because this had become so well known in the office and that that was becoming a problem when she was contacted tech that the day after this event miss  already heard office gossip about a kidnapping misjudgments answer reported that a buyer and a contracting officer had asked her about the incident so not just employees but other people beyond the scope of the employees had heard about this and so they i think they're trying to capture that aspect of this behavior in the charge can you just point me we were just i'm trying can't find it now in the appendix the the actual decision that refers to notoriously the the actual final decision the final decision i mean is that we're i mean i'm trying to figure out just all this paper i have in the appendix the progress because first they charged you with five basis senator whatever so i'm and i'm looking and then the final decision this was a nose proposal appendix well i was a final decision on the proposed five day suspension but then they changed it to three so i was not following orders we are the just to go back to this exhaustion issue i think i had said earlier that i believe this was all present all was and could it could have been and was mr johnson is really arguing that the fact that the agency started out with one charge and then edited their draft proposal which is what they learned about interest in discovery and what i think the board was talking about was also a separate retaliatory action i think that is what the board was addressing and saying would be if they're making that argument that would require separate exhaustion and a separate exhaustion process and i think that's supported by the case i knew mr johnson has pointed to the bryant case in her papers to try to make the contrary argument but i think that court that case actually supports the fact that exhaustion would be required for that claim because it refers to the minutes meyer case which is distinguishes and it says that in that case they contrast that situation where you're bringing a separate claim of an action of retaliation and say you do have to exhaust in that case with the bradley case where she's just filling in details about the actions for which she claimed she was retail retaliated against and so i think if that's what the board i think if that's what mr mr johnson is arguing that there is an exhaustion problem can i actually i mean it seems like if one were just listening to the discussion that's going on this morning it seems to me that with one hospital possible that one could say well what's really at stake here the issue the charge of retaliation and the proof of the cheating is based on the use of this these words not that they took the three day suspension of action against her but the fact that they used these words and if they had used really horrible words not these which were something even worse to describe her action then is it possible that one could say well the fact that they took a three day suspension ok they can justify that perhaps on the conduct but the evidence of the retaliation here is based on that that the agency has used extreme words that they've never used in connection with any other are it the way that the court has has said that these are supposed to be look this issue is supposed to be looked at in a whistleblower case is in the analysis that the court adopted in car and so you do look at  how the conduct matches with the charges in the in the sense of you look at the weight of the evidence and if the charges were extreme pursuing the weight of the evidence when you favor the agency in that case but i don't think there's a separate analysis i case this court has said that the current houses would apply and i don't think there's a problem with that because i think this weighing of evidence that is supposed to be done can address that situation if the charge is too great if the evidence is not going away and the agencies favor i think if you have a situation where the agency has to prove the charge it goes beyond the way of evidence that creates real problems in cases like this case in particular where the board in the court does not have jurisdiction over the underlying personnel action so you're creating a situation where the where agency would have to prove the charge in a case where the board in this court doesn't over the charge and that seems very in congress so i think the car now says it does deal with the problem and i understand that the court is reacting to that language but i do think even so the the  certainly aren't that's true maybe notorious doesn't require broad knowledge but even if it did i mean the facts are in this case that a buyer and a contracting officer had asked mr johnson mr johnson's boss about the incident so it was widely known and asking a lot of the briefing here seems to be on this maybe legal fight about whether or not he was car and the car was something different than what mr broder is advocating in terms of the analysis and review how does that make any difference at least in the context of this case in terms of what we have to evaluate the strength of the agency's case looking at everything they looked at how would that be different than we had if we applied in other proved its charge and that this court should consider that and i think that is different than the car standard because i think the car looks at the weight of the evidence rather than coming to a final conclusion on that charge and i think that's a problem both because you have the agency having to handle an adverse basically prove up the whole adverse action case you know whistleblower contacts but it's also a problem because there are going to be some cases where the s p be if you're evaluating the strength of the evidence that includes looking at whether or not the personnel action taken was supported by the i mean i as a practical matter if you just tell me in this about these facts is supposed to apply to to see i don't i don't think it would develop much differently because i think the agency's evidence is fairly clear but i think it may create a situation where the agency slightly more preliminary assessment and granted that's not i don't think made explicit in this case law but it it seems like that's what the what the court is doing  these cases that it's it's not quite making a final determination on the merits of the adverse action and congressman sikorsky to march twenty first one nine hundred eighty nine congressional record house side page five zero three three talked about the clearing convincing evidence for a standard which is what we heard about and he said that is a very high agency holding the cars with a high standard who has given a proposal stating that this individual mr johnson committed the torricelli disgraceful conduct and where they want to talk about eminent domain or where they want to talk  for and what happened and if we conclude this is substantial evidence under any standard or whatever to support that that actually happened you're saying that we also have to evaluate whether or not a label that's also contained in the letter is supported right i mean that's got to be your case it is my case and is there anything when everyone is there any case that supports that is there a case that says you you you something other than the person the basis for the personnel action and looking at the personal action which is a three day suspension that we're really talking about there is there is no board case no federal circuit case of which i'm a we're  and maybe that would have it up with people here maybe not considering it but it's possible but the agency chooses to charge you can't sever the charge in the specification of the specification support the charge if you don't have a charge you don't have a case against