supposed to be liberally construed favor of citizens who leave the their active leave their civilian employment to serve their country in active duty military status but was strictly construed against mr scott or by the district court your honors their spore issues today before the court to that i would call the main issues that were ruled upon by the district court and then to sub issues that have been raised by the appellee that justify permits by the  record the first is whether or not sam properly reapplied for a position of employment under userra the second is whether or not summary judgment was proper to find that same waive his rights under you sara third is whether or not sam is qualified for a position of employment under  for a position of employment and the department of labor in two thousand and six issued sweeping regulations that gave guidance to both employers and employees about userra and two of those regulations really clarify the itself must say one one it says that the gold standard a ploy should say that they are a former employee that they're returning from active duty military status and that they are seeking well sam's job application to the brian that's for the store manager at the bryant dollar general store obviously says he's seeking an application for employment people to submit job applications if they're not interested in employment second it said he was a former employee of dollar general twice on the application and it also to an objective reasonable person has this court requires sam to do said that he was a returning service member so just to focus attention  here the briefs don't seem to be entirely clear about when the application for employment happened i hear you saying that it happened when he applied to the dollar general at the at the other store and not when he was interacting with the dish reporter was a plot with the application both of which came after the matrix interaction and i think to clarify the issues on appeal we are contending that all of the events have to be taken together and viewed but it all culminated in a proper application afghanistan yes your honor and also he also list on the application as well that he was listed as employment with the arkansas national guard a reasonable person is going to see afghanistan and arkansas national guard and come to that conclusion that they are turning service member should be immune there are guardsmen over there who are not in the service and support and i think that's an unlikely position especially also with the fact that he did say he was a former employee we're talking about  a direct result person's going to think when you say i'm a former employee of a store like dollar general that they're going to check his employment file if i could he applies for a position at his employment files going to show that he gave them pre notice that he was being deployed and that he dealt with matrix as being on active duty military status again this court said you have to look at objective knowledge not subjective and i think the objective point is going to be to look at it as a whole dollar general what it known that he was on active duty status isn't there and taking that objective standard isn't there a timing problem here i mean you take that on its face it indicates that he's been let go by dollar general it also indicates that he was in afghanistan and got entered that could have happened twenty years ago it could happen ten years ago it could happened five years ago and the statute indicates that it needs to happen within ninety days and so how was the second store able to tell that he had just returned and was within that ninety days  i think that when you say again i think the point that he said he was a former employee i think that shows the former store he's a former employee they're going to know when he was a former employee they have files on these people and that the whole employment files going to tell you exactly when he was a former employee and everything about him including the fact that he was just in afghanistan and all of these but doesn't match the head doesn't expect too much of the employer and here's why i say that what you really are going for is a collective knowledge type doctor and you're really saying that this other store should have knowledge  of what records this other store has that maybe some you know some number of miles away and they may not have that knowledge but we're still sort of i guess extending the walk in some respects saying that that one store within a company has to ha is attributed with knowledge from an entirely different story that may be clear across the country how would that work if you had a new york dollar general n l a dollar general would you still make the same assumption certainly or i think that there is something to say about the fact that you know the bright store and the in store are so close together but i think there's also something to say about the fact that we're dealing with one for peroration while you are applying to a store you're applying to be an employee of a single business entity in while you know something might be different wyoming i think the same standard still plies that they you say you're a former employee they should have i think it objective person's going to say they have the ability to check everything about this employer has a past employment because it's one entity it's be different if i was applying to a subsidiary of dollar general it might not be on the same computer system might not have the same human resources department but he's not it we're talking about one business entity did he say that which store he was the manager of i believe he said in the application that he was the manager of the bin store i'm not positive that isn't that important to your argument because i mean the the fact of matter is is these records aren't centrally located so if i were to say you know i was the manager at mcdonald's you know when i returned i mean i could be any store in the country thousands of stores and so how are you supposed to search and find records with thousands of stores out there well in sample occasion i do believe it says that when i mean i think i think any with the employment file do you think there's some degree of central location with what mr scouter i mean you're going to be able to see that he was a former employee way or enough and if i mean i think of any employment files going to contain that and also about the timing i do believe the application also specifically said when he was employed with dollar service could the new dollar general store have reasonably concluded that he was fired from his previous of employment and therefore was bought under cover to the statute again i think that if you view the all of the issues below most favorable to say and all the evidence  we have to go on summary judgment he put there that he was terminated because of the fall of matrix and while i do understand that it does say terminated it does not say i'm returning service member that it degree of exactitude should not be demanded upon him because he's there because of matrixes and actions and also the also he the he didn't say that he was wanting a job while he did say he was a former employee former police could still be entitled to  or protection you can see why i'm asking the question though because the problem i'm having is suppose that the previous story terminated him for stealing money at the register and i didn't happen either but suppose that was the case and it puts the exact same application into a new store the absence from employment would no longer be missing the suffocated by service the absence of employment would be nuts necessitated by the fact that he stole money from the same employer yes your honor and i think your question driving home up point of that when you put on there that you are on an application that your former employer that you were terminated objective reasonable person is going to think the employer is going to check that employee file and find out everything about mr including finding out that there was some confusion as to whether or not he actually resigned with matrix and that he was on active duty military status and came back and was seeking reemployment the next thing i want to point out about the application itself is the regulations also really well dictate who the application has to be given to a regulation when one nonsense  given to the employer or any one of the parent authority for accepting applications employment applications clearly same submitted job application that was not only received by dollar general but whoever receives job applications through the online portal obviously has a parent responsibility to accept those applications now i'm sure my colleagues going to get up here and try to argue about a seventh circuit case mcguire which helped that when someone was told they had to reapply through the human resource department and that that was a position of employment but the problem with mcguire's since then the department of labor has come down with one one not specifically saying who you have to apply to doesn't say human resource and it doesn't say appoint an agent it through a routine channel appointment specifically the department of labor when they issued these regulations and their explanatory memorandum specifically rejected a comment asking for a regulation saying when there's a routine channel free  the district court required that same demand reemployment that's not contained anywhere in the statute or regulations again the regulations and the statute have to be liberally construed in favor of saying the department of labor's told us that explicitly and also the idea that he had to reapply at the same store again the use air speaks in terms of replying for a position of of point not the same and regulation one one eight says in your application you can basically position you're interested in so basically you are saying the bryant store manager position sam said that was a store he was interested in him to quickly cover the issues a waiver just simply low and his actions and asking the matrix representative one could do what he needed to do show that he lacked knowledge required the waiver right you had that knowledge of your bike and by asking matrix what he needed to do that say even if they did try to take those efforts sam came forward with an affidavit that clearly explained why he thought he was a he knew he'd show that he was from a year with the requirements of a store manager position and why he believed he could andle those with reasonable accommodations and i we kind of go into in the reply brief why the brown plausible explanation standard should apply here because the burden of proving that he's lying qualifies actually on the employer in this situation whereas an and a claim the employee has to prove their fall applied but even if it did apply ply his affidavit clearly covers that and the judicial the stoppel real quickly the supreme court brown said just because you apply for social security disability you know how to stop from you know applying for a job under the a p a because you can be disabled a day or so screwed a disability act and still be qualified for a position of a point with a reasonable accommodation and the same principle would apply to sarah so that would preclude judicial stoppel also this court has ruled that there's a degree of discretion even on summary judgment for judicial stop on again the district court didn't make an express ruling on judicial stoppel so this court riverview the judicial stoffel argument it would be in a weird situation having to give the district court discretion when it did make a ruling and i'll reserve the rest of my time for a bottle r is judicially stopped from pursuing the claims here by his course of conduct in pursuing claims through the social security disability benefit process that we're directly at odds with the position that he's taking in this case  secondly that his course of conduct results in a waiver of his reemployment rights not withstanding his protest that he did not specifically resign his employment i believe the record will fight as i'll explain further that is actions resulted in him waving his rights both in his application and pursuit of benefits to the social security process but also through other processes and then thirdly that his actions did not constitute a demand for reemployment  if anything inquiries that do not rise to the level of an application for employment leave of brief recitation of the timing would be instructive the first is to note that the first thing that happened in this process was in december of two thousand and fifteen when mr scudder made an application under the penalty of perjury to the social security administration that he was unable to work because of a disabling condition and he that he had been unable to work since december tenth of two thousand and fourteen and was still disabled and unable to work that's in mr scudder's appendix twenty nine thirty one that was not quite four months before his call to matrix a march thirty first of two thousand and sixteen where it is undisputed that he did not ask for reemployment quite the opposite if anything he was saying that he was unable to work and that is that is undisputed that he said that he is unable to return at the end of his leave which was set to expire the following day which would have called for him to return to work on april second now you're making a judicial stop argument as you mentioned and i think i'm characterizing opposing counsel correctly but but he argues that you didn't really raise that before now and what your response is that we did your honor we did we did raise it on summary judgment and while the district court did not provide an exhaustive analysis of that it did find  and whether the court of course had had raised that as a basis for his decision expressly or not course this court is empowered to find a judgment against him for or against a party on matters that were not specifically decided by the lower court  what about the regulation you have to see about whether you can accommodate or whether you can avoid the disability that applies upon reemployment not prior to reemployment so once somebody has once but somebody has gone through the the obligation to see if we can avoid a disability not until he's actually re employed your honor and in this case even if he had been reemployed the fact is that he has consistently represented in fact during the pendency of this lawsuit he has consistently represented just the opposite of what he's claiming in this case he's claiming in this case that he should have been reemployed and put back to work he has represented to the social security administration they have accepted his position contrary to the last case on the docket they accepted his position and in december of two thousand and sixteen the administrators lodge after a hearing at which mr scudder testified that he was unable to work the administrative law judge found that he is unable to work in any capacity not even as i believe the last case was as a maintenance worker or as a worker in a in a health care facility this a l j found in an exhaustive ruling found that he met every factor for being unable to work in any capacity in any position my understanding of the appellant's org media is in response to that that the social definition of reasonable accommodation but the ale j's opinion does go through whether or not any position would be available and i think that implies with an it whether or not that position that person could be accommodated and allowed to work in a position now w anything off the top of my head i can your honor i'd be happy to look and if i'm able to find one i will certainly bring that to the court's attention i believe though that the fact that the standards for the l j to apply to find that an applicant is disabled  so exacting or so demanding to require that you be unlike the americans disabilities act which has a very low bar nowadays to be considered just to be considered disabled social security administration applies an extraordinarily high bar which is laid out in the administrative law judge is very reasoned opinion from december of two thousand and sixteen i would also note that whether or not there is an accommodation process that applies whether it's up on re employment or upon expressing an interest and re employment the the record in this case reflects that mr scudder did not request reemployment his position here before the court is that his application to the bryant store was his application for reemployment his testimony in his deposition was that he sought read that the first time there was any discussion that he employed was from him and it was during settlement to go she ations after the filing of the lawsuit and that's have missed that's a dollar general appendix page sixty four which is an excerpt from mr scudder's deposition testimony even if however he wants to contend that his bride application was the application for reemployment the application to just ross you  o raise a question whether or not the application says where he was a manager it does not it says that he worked for dollar general from two thousand and thirteen to two thousand and sixteen does not say where with respect to call it in to your point about the having been served in the national guard he was his position the national guard in the same way he was his position with mcdonald's that he once was in the in that position and doesn't  he had previously worked ok so how does that work how does the online application process work is there or is there is a company wide portal it is it is the way that the process works  is not a situation where all applicants for all fourteen thousand stores nationwide are dumped into a central question the was the application submitted through a dollar general company wide portal online it was my point was that it was that the application was made to a different store a store that did not know him it was also an application that was not made it was a request it was not made to matrix matrix was the entity that he consistently dealt with personally for years but the regulation doesn't say it has to go to the person that the company wants him to go to well and you are the i believe that mr scott or his perhaps overstating what the department of labor has said this understanding him correctly the cot it was a response to a comments that had been made on time out the actual regulation section one nineteen the application must be submitted to the pre service employer or to an agent or representative of the employer who has a parent responsibility for receiving employment applications i thought those were judged shepherd was getting at you send it in it in through a portal that was what dollar general made available so why isn't that obviously a representative the employer as a parent sponsibility for receiving employment application because i believe it would too timid to judge  point it would impose a construct of knowledge obligation that is not present in the statute as the court found a different question about whether what he said in the application is enough to satisfy one eighteen but said in the application to the bryant store i worked at the benton store i went to afghanistan i just got back from active duty and i want to be reemployed and i want to do it at the bryant store begin with on whether or not there has been an application for employment but it is a case by case determination focused on the intent and reasonable expectations of both the former employee and employer in the light of all the circumstances and here the circumstances are such that mr scudder knew that matrix was his point of contact on all things related to his military only and any request to return from military only he knew to contact him on march thirty first contacted them many times previously as reflected in the record and if he hung up that call not intending to waive his employment and in sending the opposite to reapply which by the way is is not what he's saying here he's not saying that he saw reallocation resigned in order to waive his rights and i actually refer point the court to a decision that's an old one from one hundred sixty three but it was decided by then judge blackman before his ascension to the supreme court and he no cases where the if the authorities doing disclose instances of waiver of reemployment rights and he says they they they mean in these cases do illustrate that the courts have not been averse to declaring forfeited by one kind of action or another the reemployment rights a man in service would otherwise have and just months before mr scudder is calling matrix on march thirty first to say that he cannot come back on april second that the this court has no it is a case by case determination in the way that in this case it is clear the mr scudder was was dealing exclusively with matrix he knew that to be the case he had consider this is not a situation where you've got an entity that's out there may have been your honor but that's not what he did here it may have said he had to go through matrix i believe so in this case or i believe the i understand why he couldn't go to the men's store and say hey i used to work there i want to come back you're saying because he knew that he was one of  matrix a couple of different reasons yarrow first he was the store manager of the baton store so if he'd gone into the best store there wouldn't be anybody it would just be another would be somebody who was filling in as the manager if anybody he would have needed to contact his district manager he did contact his district manager prior to contacting matrix to say that he couldn't come back and the record reflect that every contact he had or attempting contact he made it was simply and it was a hey i need to talk to you or hey could you give me a call there was never any never anything even close to a request to be reemployed and quite the contrary as the position being taken by mr scott or here today is that he was not asking for reemployment when he had these earlier conversations because the first number six summary judgment something like that at first i believe it is contained within dollar general us militarily policy i believe it also is and it was reflected by the fact that he had personally been in direct contact repeatedly with matrix to talk about extending as a lee and and on this call on march thirty first he knew that his leave was about to end he did not ask that his leave be extended he's not taking the position that he asked that his leave be extended he said i am not able to come back to work on april second and in fact on april sixth the record will reflect that he was having surgery while at the same time across the street from the courthouse he is arguing to the social security administration that he is unable to work for munira bottle thank you your honor judge you asked earlier if the application said where he was the store manager and on page two of the application on page twenty four of our separate appendix at the top left hand corner it does say exactly where he was the dollar general manager has been arkansas all region number fifty not i which again is going to be very close to the bryant store dollar general just has a problem with what the regulations say they're trying to say that  meet reasonable expectations even though we complied with the black letter about the regulations said regulations say it to a plot of the apply to the employer or you have to apply apply to someone with a parent responsibility for accepting employment applications again clearly the person accepting it when your concern is whether he said that he was returning from service in the uniform services he says he was returning from afghanistan injured yes your honor and then also in the application it says that he was in the national guard again and the date as they were previous employer yes and it doesn't have an end date and again all again this court has said you have to look at everything in total he did have all these conversations with matrix dollar general had in his employment file that he advanced notice that he was being sent on active duty and again he applied there would a centralized dollar general job application process so the reasonable observer really are relying on the idea that this store had to go check other records you are relying on this i would say i'm relying on the application itself in the sense that the reason persons go see afghanistan a national guard put two and two together but then also the fact that they easily could have just checked with the city and then lastly roundish the supreme court specifically said you can apply for social security and still be qualified for employment in the supreme court has spoken on that issue and just because what kind of reasonable accommodations that he says he can do well he says in his affidavit that he could do the store manager position with reasonable accommodations but i think that the duty to find him a job of a life pay like status would be on dollar general