bush thank you it leaves the court there's a lot in this case that is fundamentally wrong in the way it was allowed to be prosecuted in the way we said we're surprised but i think it's important  to understand that at its core it's you sara case and the central issue was whether or not the the drug enforcement administration discredited or failed to take into account in calculating my client's paygrade is military service and that that fact is is undisputed because miss tanya been trying to testify that she did not consider my client service in law enforcement in haiti while it was quote law enforcement she said it didn't protect federal law his accumulating additional experience what happened between the date of the vacancy announcement in the hiring of her he continued to service a police officer in california and then if you could at least officer probation yes but as under california law as we explained in the case in chief he's a peace officer as assigned law enforcement type qualifications and duties so the issue for the judge was not the judge did not reach the i'm just trying to understand what yes correct and and yes so you consider that probation officer officer experience relevant to whether it would have been qualified for that higher pay grade credit and the administrative law judge didn't really reach that issue he suggested that the military time might actually qualify he came down to his decision solely based on his one time you being a much wider and th hour and surprising testimony that she had calculated that the the decision on how to set up a grade for the applicant occurred at the time of application not that the time the vacancy announcement closed she did testify to that fact but you contradict yourself she did she went back to where i think one of the things that should guide the court and i hate to do this but i still i'd still be to understand what announcement in the higher that that is correct but one of the reasons he doesn't make the year according to the arrange agencies original position was that that military time didn't count they examined it application was submitted and the central issue for the administering of the idea is that the probation experience that occurred between the time of the vacancy announcement of the hiring would warm up one year if they had included both yes are you relying on the haiti experience at all b because the original position from the agency that they argued in the hearing itself when they examined miss tanya being schweiger was that the military time in haiti didn't military time then you don't get over the years and the sarah violation is would be made out even if there was a quest even if it was a simple question did you qualify are saying that if you count the haiti experience you have a year even before the vacancy announcement no he did not know we've known that before or i'm sorry yes before the vacancy announcement but not at the time of the application and i think the critical thing that that gets a little in the stand well  see if i can explain judge the issue in the case is is true for the issue is did the agency discount military service in terms of assessing time and the answer to that  correct do you continue and that he's satisfied that one year and that point yes and how do you get there you combine the time of law enforcement service in haiti with the time as a california police officer and that did the age in the decision about the he he did not reach the issue he simply said that the issue the sole issue is did he have a year at the time he applied and the answer is no he did not get to the calculations that we into an opinion and he said what i look at is i look at the testimony of anything is wider who says that you take the application at the time of the application you calculate the great the great was calculated the g s seven according to the s f and seventy one the reason they they did that us is they don't include additional experience and by the way i discounted the military experience to that's what she says that's what she testified to the judge only reached the issue of the issue of that's what happened and and during the during that period he came in and when he originally was hired he went to joel and said look i have this qualifying time in haiti and the times of peace officer i interrupted army i was there earlier i asked you at the and one only gets about both i think we need to certainly understand the facts were sure at the current actual hiring had according to you more than one year of experience yes and you get there  time he applied for the position he did not have a combined period of more than a year then at the hearing they raised the issue tanya being a schneider on direct raise the issue that she did not  uncertain of that point there was some contradictory testimony from time to begin schweiger about whether she thought it did or not but it was never made clear in the record to me what the basis of any of that really w on there was never a position taken remember the way this all came about for us was this witness came in after the close of discovery as an essential expert which we tried to post one of the reasons we did that deposition your honor is to address some of the questions you're raising what do you mean by you have the opportunity to cross examine at the hearing as long as and that's of it because because i could not in her in her exit in her disclosures that we're hearing disclosures the government never once stated if you look at failure to allow the deposition non prejudicial because we couldn't go into the basis we couldn't go into the basis of her opinion we couldn't call an expert to counter her we couldn't that's a different question you're complaining that  and i think we alluded to the fact that there was an error in allowing her to test speculate on issues that she was in a percipient where we say in the re that there was an error i mean in the process i think i think the error was was ok so you see there that this this position we're talking about he described mr sorrels did as an extra help counselor a juvenile hall counselor charged with the supervision care and custody of minors who were accused of every sort of  the factual finding of the a j was that the what was required what the government looked at was the experience at the time of the application that's the factual finding are looking at right here so we're not talking about whether or not that different function got me asking a different question right i'm asking let's set that timing issue aside if the government contends that this work as an extra help counsellor was qualifying or not so there was testimony from its being on that she if she were in her capacity would not qualify this as qualifying experience however from a legal perspective legal arguments the argument of the agency has always been the experience at the time of the application is what matters so i guess i'm a legal perspective we've not about the timing or just ask you a different  right does this experience qualify the testimony from the relevant witness from the agency was that it would not qualify now and i think it mr mr putting counsel point out that this is a usera case and so we need to keep in mind that there needs to be a nexus to  serrano service in order for there to be any recovery even if there were an error here and as the court pointed out i'm he concedes that when he applied in one thousand nine hundred and five the combination of the time spent in haiti and the time spent as a special extra health counselor would not oversees six specialists in two assistants and she is the chief of the special agent recruitment unit her testimony was that she would not consider this experience to be qualifying as investigative law enforcement type experience for the purposes of a g s full testimony before us i understand that there was some testimony on the lines that maybe he escorted minors to and from courts oversaw that maybe that there are some investigation again the question is whether of course again this is you sara case we have to draw a nexus between  service in haiti and the failure to give him access nine and the factual finding was that it's the time of application that the agency looked at you know it's a factual finding will go ahead continue your thought then i want to ask you certainly i just want to say the  narrow finding this court would essentially have to reach is that the policy of the agency in one thousand nine hundred and eight actually was to retroactively look at all the experience again in the delta between application and actual hire and that they failed to do so d that you look at the experience at the time of the application right and fight even if there is inconsistent testimony from the key witness so the concern is that how can we just review this verse of stange of evidence when the aging mistakenly thought that it was undisputed and perhaps you know when you look at substantial evidence you're supposed to look at evidence that favors  and as you're considering that how can we justify this as a fact finding that's reviewed for substantial evidence given the sentence you know the statement that it's undisputed which is clearly incorrect as certainly on or so what you're referring to is of course the fact i missed a number heard several times her testimony to the closing date of the announcement and then as opposing counsel pointed out in this particular announcement it said open until filled and so the closing date of the announcement as opposed to a normal government job for example when i applied for i believe it was only open  she was testifying i believe in a more general sense that in general the they look at the closing date but also even within that context her testimony with consistent that what the agency is looking at is what it was actually submitted  the applicant at the time of their application she said no telling us we're not supposed to find it in kids but what if we do certainly or i think that the a j made a factual finding based on the overwhelming majority of her testimony again was consistent of what the agency looks that i substantial evidence that would be grounds for this court of course to send it back to him but i don't think that the court needs to get there because the testimony back in there was showing cricket but the words showing this would have been difference again i think the courts and credit the testimony of mr ingham who has i believe at this point time over twenty years experience doing particularly this which is reviewing applications and then determining what rate should be assigned to them and she testified that she would not credit that sort of experience with the kinds of investigatory all narcotics investigation law enforcement experience that they would usually use to give to give it yes nine in discussions with my agency counsel he gave the example of it set up that way that if you have if you have a couple years experience as an f b i agent they want to make sure that when you come over to the d a you actually can get a higher grade as opposed to someone who's just coming in and i would just like to briefly address the assertion made that the military experience was not credited at all that this thing  yes nine for example then once you have the experience to be considered for a g s seven there's a point tallying type system which i think a maximum is probably about one hundred dollars points you get ten extra points for any former military service and so that is calculated is nineteen to twenty one on the form ok ok so here's the problem with the case i think the courts correctly identified it is it's what happens when you allow a surprise witness at the last minute to come in who testifies as a virtual expert who testifies without any reference to documents or any reference to the policies who's not allowed to be deposed and the reason that that's important is your question tonight i understand your press if you had you had an opportunity to d what do you think you would have been able to for that i would have been able to bring an expert in to say that's not the way we do it i would have been able to bring i could have also brought in joe loved who could have explained why he had the comments he did if on the sets one hundred and seventy one that tells the story itself know we did not at that time because the decision had already been made that she wasn't an expert so what we were going to counter i took i must have objected twelve times to her expert testimony and i kept being told she was a fact she was a  we were surprised by tanya being a squatter claiming that going into the issue of the qualifications that has this is it the one that want to follow this maybe more there may be more pre hearing submissions i without looking at the entire record i can't say i know that there is some testimony and again your honor i think that the problem is is that as i think courts that there's a process that goes with presenting cases and it's through discovery and it's through disclosures and when you get a surprise like this at the end of your position at the end of your case right before a hearing there's no way to counter that we did everything we could to try to get the percipient witness at the time who actually filled out these forms and discussed this with my client with the agency said they couldn't find i think we're out of one hundred thank you