to reverse the decision of the merit systems protection board modifying the decision of the administrative law judge in sustaining the postal service's penalty or removal contrary to the administrative law judges deciding officer michael blows where in the ministry of law judge made credibility determinations regarding mr bose testimony most specifically that mr bose testified that he gave consideration to all the relevant douglass factors however the administrative law judge implicit in her decision was that he gave no such consideration in its apparent from the than notice of agency action to the  removal decision on and that's contained in page eighty two of the record where and mr bowser states that are all of them relevant douglas factors and i find nothing to mitigate against the charge credibility because when you look at the record and page eighty two of the notice of the six were and it finds right after makes the pronouncement that i've considered the douglas factors i found nothing that would militate against the georges i find that your lack of honesty proves to me that you cannot be readability when you look at the l g s decision than the portion of this relevant speech one eighty nine one nine one  then there's a problem with the word coming to a different conclusion of the facts or that's the way the war operates if there is no credibility issues with the a j it's a tough row to hoe for mr mr arena the language of this court i've seen in some deciding official clearly did not give consideration to the relevant douglas factors in that i think it's implicit in the a g s decision that they did and then the board adopts the deciding official or the agency  complete and full consideration of all the relevant douglas factors when a contrary representation has been determined by the a j that this court does have the authority to review that decision and reinstate the agency's recommended penalty  gap in the deciding officials decision on douglas factories in the period that mr bose identifies everything in terms of depression divorce last home deciding official identified all of them but ultimately concluded after weighing the seriousness of defense and the fact that mr roosevelt to cooperate with the investigation that these potential mitigating factors ultimately don't warrant mitigating the penalty well with an eighteen year veteran of the service with no prior discipline disciplinary history and i don't believe the deciding official touches upon that but even in his own decision recently calling about length of  service length of service but he doesn't talk about his absence of any disciplinary record but he says i found nothing that would militate against the charges i find it incredible that you can weigh these factors the articulate the take you later them in the in the letter b find nothing to mitigate it's not that i balance these on balance the seriousness of the offense warrants with terminations it's rather he gives lip service to considering but clearly he did not but the problem for both the board and this court is we were very limited in in in reviewing the discretion of this deciding official on trying to cast what's an appropriate penalty here knew that was what the board was pointing at when it ultimately concluded that this particular a j was the platooning her judgment for that of the deciding which in the way by which this court can review that vision of this is the way that the j determined that if the deciding official does not give appropriate consideration to all the at the official properly considered mitigating factors it was it's clear from the record from his letter of decision and testimony that he didn't consider he gave consideration only to the nature of the offense in the risk well i don't know that i'd characterize it as nitpicky even when he testified at the hearing when he testified about the basis of the decision it was solely based on the seriousness of the nature of the defense of the offense all of the o gather see potential for rehabilitation that's one of the negotiation of the seriousness the length of time that he had in the service eighteen years the fact that during that eighteen years he had an unblemished disciplinary history during that eighteen years he was a trustworthy valuable include employee to the service and there was absolutely no consideration given to that and i understand your honour's characterization but both a j and the board  looked at those issues and they considered them and they determined that even considering those removal at least the board removal was the the automatic to a reasonable penalty that was the board's decision finding that the agency gave appropriate weight and consideration of the role of the douglas factors which was contrary to the administrative job judges finding that they did not that's the basis by which he she mitigated the penalty two hundred twenty day suspension so i understand the question of the court but the board's decision upholding the removal penalty was premised upon the deciding official giving those factors consideration weight and he did not because he did not know the board and this court can review the decision to impose what would be the appropriate maximum penalty under the circumstances would that be our rule or would our role be to vacate the standing official the decision to go back and do what you would regard as a more adequate analysis a more complete analysis of all the facts i don't think so because i think that analysis has already been engaged in by the administrative judge that that the agencies view the seriousness of the offense could not be credible it because they had left mr reed on the job for several months knowing that he was using drugs on duty whereas the facts are actually that mr bose did not know and did not hear anything from oh i g until the actual day of mr arenas removal from the job on august twenty seventh in with respect to that i think what the a j was was stating was that the testimony of mr burroughs about the significant form that can occur in the workplace  as a result of this conduct is somewhat alarmed by the fact that the i g sat on this investigation for six months but none present the whole idea that all interested in the person all should read from all advise is that the supervisor that it's not the issue a criminal matter and we get into the cal kinds of warnings in the givens memorandum however i think it's interesting that oh why gee continues to conduct the interviews they don't wash their hands and say this is a personnel matter step in with the fruits of our labor they come in and continue to pressure renan the attempt to to have him submit to an interview so i don't know if there are interested solely in a criminal matter because they're being used by  morning may have please the court the only issue with this before this court and this appeal is whether the removal penalty that was imposed by the postal service should be sustained under the governing standards the court must defer to the agency's choice of penalty the question isn't whether this court would have imposed the same penalty or even whether the penalty that was imposed by the agency was the most effective the court can only overturn or upset that penalty if it was in the court's own language outrageously disproportionate or so harsh an unconscionably disproportionate to the offense that amounts to an abuse of discretion here mr reno was charged with three different offenses the first was improper conduct based on his long history of using illegal drugs on the job the second was the charge for failing to stay gainfully employed based on fact that he was taking multiple in some cases hours long and authorized break in the van and warehouse and the third was a failure to cooperate in the postal investigation based not only on his refusal to speak to the oh i g agents about the drug use but also his outright lied to his supervisor when on the one occasion when he did actually address his drug the outright lied about it multiple times mr rena denied all three of those charges up until the eve of his age a mystery judge hearing at which point he finally conceded the first two but he continued to deny the charge for failing to cooperate in the investigation the ministry of judge found that the agency had met its burden of proof that charge because there was no plausible or reasonable basis for mr rena to have continued to refuse to talk about his drug use once he was given the cal kinds warnings the use of unity on several occasions mr ian did not appeal that finding to the full board and so at this point all three of the charges have been conceded and again we're only talking about the penalty now the only evidence in the case from the deciding official mr blowitz was that considered all of the douglas factors all of the relevant of the spectre's that were potentially applicable to the facts of this case he testified at the hearing before the administrative judge at great length about the factors that he considered and how we came to the result that he came to in addition the deciding official met with mr arena before he was discharged and gave him the opportunity to offer any evidence he had to address the situation or any mitigating evidence that might support a less of a lesser penalty at that time mr arena didn't offer any evidence the only the only potential mitigating factors that he identify were his length of service the fact that he had apparently undergone a divorce recently and he alleged he had been diagnosed with depression and the fact that he had made a phone call after the fact to the employer graham again no evidence was offered either to the citing official or at the hearing to support that there was any causal connection between the divorce or the alleged depression and the fact that he was using drugs on the job according to his coworker up to four times a month for an entire year and that's why the foam board found that regardless of those allegations there was no supporting evidence and so they couldn't support mitigating the removal penalty that was imposed by the agency the only factors mr rina did offer again is length of service the a p those in fact were cited in the deciding official terminations letter they were cited as factors that were considered and mr ball was testified at the hearing that he gave in his words significant weight to the length of mr arenas employment and the lack of any discipline in fact admitted in his brief page eleven that the deciding official acknowledged that arena was attending the a p and his length of service so what arena is really challenging in this case is the way in which the agency weighed the different douglas factors in essentially mystery as asking the court to weigh those factors a new without giving any deference either to the border to the agency and that's obviously improper under the court's case law the agency here was fully entitled to rely upon the long history of mr enos lack of cooperation and the surely when he was approached by the oh i g agents in august two thousand and twelve he refused to talk and at that point the documents in the record show that he was getting given a written copy of the cal kinds of warnings and asked to discuss those with his counsel and contact the agents again within four days he never did so when the oh i g agents approached him again in early september two thousand and twelve they orally gave him those cal kinds of warnings again he was read a memorandum from his supervisor that directed him to cooperate with the agency now that he'd been given you some unity or face the penalty of potential removal again he refused to talk when he met with his supervisor later in september that was the one occasion where he actually would address his drug use and when doing so he flat out lied about it on multiple occasions if you look at the supervisor's notes he was akmal asked multiple times where using drugs on the job he said no no no many times and in fact he said he was smoking flowers in the warehouse when he was caught on surveillance and then after that when he eventually met with the deciding official again he refused to discuss his drug use that time so the agency and in turn the board under the court case law were fully entitled to weigh mr arenas lack of cooperation in determining  appropriate penalty in this case and finally the the penalty that was imposed to removal is fully commensurate with the punishments that have been imposed for similar offenses to other coworkers who also were implicated in the same operation were also got terminated now mr rena points out that one of those workers mr mark hart had a prior instance of discipline which of course mr reid did not however balance against that mr mark fully cooperated in the investigation and signed an affidavit under oath admitting to the charges whereas mr rina did not do so anyway the other coworker mr leonard who also was discharged he had no prior history of discipline that was considered as part of the part of the douglas analysis and yet he was also discharged as well and finally mr burroughs testified that he looked at any instances he could find at this facility in the postal service where there were other drug charges and the only instances he could find all involved removal as well mr arena argues that those may have involved hard core drugs cocaine or selling drugs on the property whereas this was just the use of drugs but again those were the only instances that the deciding official could find and they all resulted in removal and at no time did mr reno offer evidence any evidence of any other drug charges for employees in the postal service where lesser penalties other than removal were imposed and finally the court's case law it also is clear that there are many cases where the court has upheld removal of employees who engaged in a one time one off use of illegal drugs off government property on their off duty hours and even in those cases removal was upheld here you have a ongoing pattern for many months of actual drug use on the job on the clock so clearly the removal penalty is appropriate under those circumstances as well and finally again it's important remember that mr reno was charged not only with illegal drugs but also with failing to cooperate and failing to stay gainfully employed based on his unauthorized breaks and we've cited cases in our papers where this court has upheld removals based on those charges alone without the accompanying illegal drug use so when you combine all of those together under these circumstances it would be impossible for the court to say that the agency's decision to remove as upheld by the board was grossly disproportionate to the facts of the  and i don't mean to condone drug use on the job by any means but i think the agency over exaggerate the extent of mr arenas involvement in and mentioned a pattern of drug use over many months the hearsay statement of the other employee that was terminated but when you look at the why gee report on page twenty eight and record it identifies two dates where this occurred so i think that's somewhat exaggerated as i said i don't condone the use of drug use on the job but taking all of that into account when you look at the other coworkers the one gentleman had a decision disciplinary history mark or the other gentleman leonard although he didn't have an active disciplinary history that wasn't considered by the board had a complete failure to cooperate unlike arena who went in and submitted to a drug test leonard basically wash its hands of the whole thing on not cooperating at all so the alleged failure to cooperate was making in a criminal story admission confession to zero i g or his supervisors in all other respects arena cooperated with the investigation and so i think he's differently situated then the two other coworkers in that in those respects in conclusion i think because the board erred in finding that the deciding official gaev considerable weight to the relevant douglas factors that the were aired in taking that position when a contrary position had been determined by the a j and for that reason i would