good morning may it please the court when the news on behalf of mr plaskett i would like to reserve three minutes for rebuttal the issue at base that's presented before this court is whether the agency having violated be age discrimination employment act can hold itself above the law and does not have to play by the same rules as that mr plaskett does as a federal employee when educating these matters when the e c there's no dispute that the agency violated the d m v good communication employment act and did not appeal that decision there's also no dispute that the agency had during the course of the hearing relief declaratory relief for mr plaskett for violation of the law he failed to do that it also failed to pay the sanctions as a result of mr class to get filed numerous enforcement action the office of federal operations which is their appellate arm much like the th circuit and that appellate arm indicated that indeed the agency was in violation of the law and required very how it can be final when it seems like the amount is still outstanding as i understand it i mean there's a saying a final if you will interim final sanction amount but it isn't the amount of back pay still somewhat in the air i don't sixty days but your response is i mean to me that's not final to me they've there's still a final amount that has to be calculated and as i understand the government's position  twenty dollars in ten's and they were required to do so then and if there was an amount that was then disputed pay that and disputed amount they were also required to provide a compliance report at that time  they the opportunity and it required why wasn't the outcome of that that the e e o c issues just sort of well here's how determination we are now we don't like what you've done this is what we've seen with the evidence and this is the sum certainly done that if there is a mountain dispute after the plaintiffs mr plaskett had stated that the amount that wasn't paid was twenty one thousand and twenty dollars and spends it provided the option to dispute that it failed absolutely did it indicated that this is the amount of sanction it provided that amount was due to nine to the appeal it deny the reconsideration and then it had a th order indicating you must comply agenc deficiency act as it related to sanctions is the only thing in this case that the agency had appealed and so that's why you see that there's two different inforce meant tracks on the same case if that clarifies that matter the hearing actually did provide information he provided testimony additionally three other management officials including the deciding official provided information regarding the fact that mr plaskett had i follow that required action that was bound by time it's not an atmosphere against not years later it's bound by time and the agency just simply failed to comply or engage in any way it blew quarter after asked for in force one of those underlying orders so we asked that the agency come why agency again was required if they wish to dispute the amount to indicate that was required to pay twenty one thousand and twenty dollars ten cents rather it said please just give us more time despite the fact three years had already passed your honor so when they were given an opportunity to dispute that they in their papers did not they in fact indicated that yeah they owed it and so we posit your honor that there was a clear certain to not discretionary one could have previously raised the issue in federal court of the force ability of the sanctions order it actually had multiple opportunities and it did for the adjudicate these matters and it says and i quote the equal employment opportunity shall issue such rules regulations orders and instructions as it deems necessary and appropriate to carry out that this court has and federal courts have in order to adjudicate matters to be able to control wiggins and enforce their own borders and so the e e o c having been invested  directed by congress to do so didn't do so as it relates to how to manage where there's violations of orders in there were egregious violations here i think this aptly demonstrates why that's indicates that they are exercising that authority provided to them by congress and explicitly indicates that ancient's monetary sanctions are among the arsenal court today we have a very different understanding of the record and i think it's critical for the court to make its own assessment of these disputed points st mr plastic contends that the e adopted the twenty one thousand dollars plus determination moonlighting pay and counsel points to the october two thousand and seventeen decision of the e e o c to support that claim reimbursement to complain that of those moonlighting earnings neither party has submitted documentation on this on their own and that on the very next page the e e o c directs the direction the army to make the calculation with the cooperation of mr plaskett including the requirement that mr plaskett submit all and i'm quoting now all relevant information requested by the agency and not finishing my quotation so it's simply not the case of the october two thousand and seventeen ok and that was my understanding of it as well but what we're hearing is that all about information and this is the nd point is what is missing what is missing your honor there has been no evidence number one of the threshold question of whether mr plaskett moonlighted prior to his separation with the that there was some whining i think that's right but it doesn't make that determination because there simply were not records supporting the claim so it is to establish that one was engaged in lieu like you have to st show that you were jumping to the rd point i wanted to make this is evidence that is uniquely in mr costin's possession the army can't go out and determine who he worked for or how long he worked without input from mr plastic and that's why since two thousand and  your statement that there was just no evidence your honor the e e o c did not come up with this twenty one thousand dollars figure it's nowhere in the order that counsel has referred to it has been right is that not correct helpful to two things subsequent to this order she raised the issue with an enforcement officer who directed the army to provide counsel with a more definitive statement of the records that were necessary the army did that and received no records from counsel secondly just before this latest edition was in was counsel filed a nd enforcement action before the e e o c but then it would be up in that context presumably under the hypothetical as i'm understanding it it would be a binding determination on the army and if the agent can see the answer to that the reason we don't see a lot of these mandamus because the government look at his resume look at testimony before the e e o c all of this evidence is only about prior experience and work history there is no evidence in the record specifically identify one claimant prior during his period of employment with the army prior to his separation that would establish the threshold question that in fact was in mining and then it could provide an affidavit establishing how much work he did during that moonlighting i worked is that the only thing that prevented the payment being made is that he has refused to provide the evidence that he was working doing is moonlighting job during the time that he was employed by by the arm right that while the case is pending we have mr plaskett is as interested and willing to provide the affidavits that we have requested the case could conceivably be i'm just wondering  backing constitutional basis backing and the executive branch agency which is solely a creature of congress even if it were the case that the courts have some inherent article three authority that would be constitutionally base executive branch agencies are have only the power that congress gave them and there is zero precedent suggesting that executive branch agencies have authority to impose monetary awards in excess of what congress has express  there is no legal mechanism for that your honor that's what we're hearing from from the government is that if mr st of all let me back up is there an affidavit or what information is it in the record that you can point me to where you have provided the information that the government just asked so the information regarding moonlighting there were a juror in the course of the e e o c want to know is it in the record right now yes mr different than conceding the amount i mean they may have said we need more time but that i don't think that that's i mean they can see the math here here's what is so hard about getting the affidavit that was just request it well we would be papers it's a three year statute wage records bulk under india as well under the f l a saying so it's requiring mr plaskett nearly a decade after well but but but that information has to be provided you have and  we have an understanding of the case we'll look for a citation from you to the record the wise i think you've kind of you've got to have some direction on what would work and hopefully you can do that and fairest on the st for part of this