am happy to report that this week she is two years so that will come into play later when the agency was notified by ms cotter about her disability her security clearance was suspended pending the agenc investigation into whether it should be permanently revoked in response she was paid she was placed on paid administrative leave then the agency proposed placing her on unpaid leave at that point ms carter made a reasonable accommodation requests that request was ignored by the agency at that time we petition the merits of some protection board which found that it did not have jurisdiction to adjudicate her affirmative defense of disability discrimination has to go back and sentencing requests was ignored was ignored or we were told that there was no possibility of reasonable accommodation for the record your honor goes both ways on one hand in hope p m s briefs to the merit system protection board it was ignored because they didn't even qualify her as an individual with a recognized disability i i'll get into that analysis in more detail later but there they questioned whether or not her completion of a qualified treatment program qualifies her as an individual entitled to an accommodation but what i can tell the court is that no interactive process of any kind took place complain about the state has long rather than representing a client who has been harmed not exactly your honor because during the four months that special agent carter was a special agent carter a request for relief was back pay and emotional distress as the board has the if and fees excuse me as the board has the authority to award however because the board stopped short be paid or reasonable accommodation kind of been paid leave rather than on later that right those are two examples yes judge for example the agency might rightfully say indefinite paid leave is not reasonable and i would not necessarily disagree with that however the care custody and control of the process by which a special agent such as ms carter gets her security clearance back or doesn't is within the agency's purview as such i would argue it's reasonable for the agency to check with itself perhaps every thirty days how is the process going are there positions that have opened up so that there is actually as intended by the a b a a dialogue that goes back and forth well is that if the process problem harmless if there was no  it is your honor because of the other accommodations that were possible and in fact requested the only accommodated ms carter did not only request transfer to a nonsense with position as an accommodation she clearly set forth as is even recognized in the administrative judge's decision from the board that alternatively short periods of on paid leave for example thirty days would be another possible accommodation so  can't stop in this inquiry short by just saying if there was a position then the the discussion ends in addition the only answer we got and that was later in the game was that there were no available positions  that were non clearance positions at the boston field office the rest of the northern region wasn't even looked into so if if we agree with you that the board jurisdiction to consider this then has the board consider in the first instance whether she was entitled to an interactive process or do we are you asking us to say to the board she's an item through an interactive process and it's up to you decide when she got i think both would be wonderful but but the second is is what we're here to ask the court to do is to tell the merits of protection board in cases like these where a qualified individual with a disability makes a reasonable accommodation request they are indeed intitled to a process and interactive process to determine whether or not the agency can accommodate these employees short of a showing of under hardship what is your authority for seeking an interactive process the americans with disabilities act sets forth in section twelve one one to be eight to start with so subsection eight that refusing to provide accommodation is discrimination it is a discriminatory act and then when you go to section ten it gives examples and these are this is straight from congress they give examples which seems to be a main point of the first point in your brief well to start with the seventh circuit on september seventh of this is just reversed itself to fall in line with the two thousand two us supreme court decision us air v barnette in which the us supreme court decided that transfers i don't think you've answered the question where was an interactive process provided for statute or in the relevant regulation or authority i'm sorry judge the the interactive process is provided for in the text of the americans with disabilities act which provides so as i was saying the seventh circuit just reversed itself to fall under the barnett ruling from two thousand and two and said that a disabled employee is indeed intitled to a all gets down to that for months without pay was not reasonable well this process was proceeding and the relief is being requested is not the entire four months of back pay that whatever period i might have been paid an unreasonable extension of the period of a combination of rehabilitation and reinstatement of first your honor may i ask least while the agency was correct trying to determine whether there was a suitable position during this period even though for the purpose of my question they were correct in their determination that there was not a suitable position that didn't require security clearance well they were correct your honor in that there was no such position in the boston office but they did not inquire into the rest of the region was in the area that it is reasonable for them to hand searched in that it is not not to get into the facts of whether they did or didn't but just assuming presuming that that decision was least sufficiently correct to require support on appeal with all of the deferential aspects in their considerations of egan's and the council cations of with discrimination if it's a security clearance all of those things if it turns out that your client doesn't prevail on that point i'm trying to understand what the position is of in time and should there upon the  reinstatement after four months in your view been full back pay paid or is your position that four months was too long your honor i think four months to answer your question immediately yes i think back pay should be one of the remedy in addition to emotional distress because this was a case that involves employment discrimination law so as i understand what you're talking about is that what you wanted with the interactive process and through that interactive process you wanted them to consider a possible continuum of reasonable accommodations and where from placing her aunt in a different position in the boston office if that was available to you know placing her somewhere else to giving her pain leads to giving or partial payment so that in other words there's still a continuum that that has to be that would have to be considered under your theory of course your own and you're not asking us to decide where on the continuum or reasonable accommodation might fall you're asking us to just sounded more and that they had jurisdiction to determine whether  decision this court found that the administrative judge below of the most system for protection board in that case recognized that the question of whether it agency had a duty to seek a nonsense of the position for an employee was indeed within the board's co as such it logically extends that other potential accommodations might be within the board's competence as well and i would argue that they are the bottom line is that the a b a was indeed and acted to give individuals with disabilities a chance to succeed level the playing field and most importantly in this regard under the americans with disabilities amendment act of two thousand and eight the definition was alter a qualified individual didn't just have to be qualified for the position they hold they could be qualified for the position they hold or desired so the agencies argument that she wasn't qualified for her positions or she wasn't entitled to an accommodation in seventy five thirteen were followed none of this is in dispute this card does not challenge and challenge this the sense that even recognizes the possibility that a court can evaluate whether or not transfer is feasible that right to a and the rehabilitation act create those requirements and they have by law they have to have that policy it doesn't have to be a written term policy but there's a legal requirement if your honor we're not saying case of transfer for when there was a security flaw in eagan congress saying if anybody has a security clearance for any reason that every agency is free to discriminate regardless of what discrimination are you talking about and no one can ever reviewing we're not saying that every agent know you're not saying that every agency is free to discriminate in this case it is not discrimination if you treat everyone equally what in this case it is that when somebody loses  requires that correct the law requires the aid of one's disabled the law and they fall within that the definition of a disability the law requires an interactive process is met through is in the case of a disability discrimination claim yes if somebody is disabled miki etc disability discrimination claim they are and they have satisfied the elements along requires time to find reasonable accommodation and such an interactive process so we got was here the challenge to miss cutter challenge to her indefinite suspension and she was indefinitely suspended and then when shoes paid whether it was with paying without  indifferent she challenged not challenging she wasn't challenging the loss of her security clearance as it relates to this accommodation she was challenging lpn decision to indefinitely suspend her without pay so that clearance the review is limited to three things for their security clearances revote whether the security clearance he sat in with respect to this appeal there was no question about her asking us to review whether she should have lost her sick already there the question is whether given that she was she had lost her security clearance that she was going to try to get back under a different avenue and given that what accommodations should be given to her if in fact she was disabled and our position is that o p m was required to follow its own policies and regulations and it did that it followed its own policy and in fact in agency has adopted an existing policy that does agency policies and statute or regulation or rules for griffin also goes on and right after that passage and to get the rehabilitation act is not such a policy it tended to trump trump the executive branch the discretion that was reserved and recognize it in the end and as you can recognize it has to be come from express congressional enactment and there was none interfere in this area and they must do it so it's pressley there's nothing in there that in the eighty eight or the rehabilitation and even references security clearance even contemplated executive branch policies and requirements the executive branch imposes on itself and that is what was contemplated by even when they said they can interview did the agency follow its own policies in this kid's o p m follow its own policies and  discriminate in the sense of it they treated all employees with security clearance people in the how do we know they didn't make the board refused to consider whether they discriminate the board did consider whether or not o p m it's not she's not making a claim of disparate treatment discrimination that's very clear so when you say they treated everybody equally that's not even the relevant she's not making a claim of disparate treatment discrimination she's just waved her discrimination  this case by a by coming here but o p m they did look at o p s policies and the board did look at that and didn't look at whether or not transfer was feasible and didn't look at the fact that o p m had considered that the transfer was not feasible cases whenever there's a security clearance involved and as long as we're not inquiring into the propriety of taking away the security clearance there are still jurisdictions the board even does precluded jurisdiction in all cases that are acquired looking into the national security issues agree that yes we'll give you that but how do you deal with judge newman's recent decision that says when when that elaboration because it was a particular issue the supreme court made very clear in eden that they were removing from federal employees all access to the complex structuring this been designed to protect we're just saying for security clearance that's up to the agency and is not challenge to not challenge so that the suspension was appropriate during the period of rebate rehabilitation  issue is whether there should or should not have been pay even if the agency did reasonably hold there is no acknowledge that the n s c the pm so on the agency have a good do you own authority to ensure adequate protection and particularly to respect the requirements of the da which was not a casual and act meant to reduce the mine was designed to provide additional protections and i think you're saying that in security clearance involved discriminate because of the security clearances involved what that would be is of the discrimination plain and that's not within this court's jurisdiction not what brought forward here this is a challenge to the indefinite suspension chose to come to this court what we're arguing about is in this case this did o p m follow its policies and procedures on an indefinitely suspended miss cutter that's was on appeal that was probably before the court an argument is that the dead were not in any way trying to say that opium doesn't have to respect the a da doesn't have to treat all employees fairly what telling it has no policy or procedure to comply with it is no policy or procedure to incorporate the requirement of interactive process what an employee is suffers an adverse action as a result of a security clearance and that isn't a rash violence and the a p a is it not no your honor i it's not the director saying is they don't have to follow the a d a s security clearances and well that's what you're saying that's the only way you could likely make this argument we're not saying that they don't have to follow the a security clearance is involved what we're saying is that they have to follow their own procedures and their procedures don't provide for such an interactive process security clearance that's undisputed because of merit that the so whether she was entitled to the interactive process what that's happened here is that but the board found it had no jurisdiction so we can't consider th question right just like we can't order them to to give her some accommodation the most we can do is say the board has jurisdiction to consider whether the whether the all appropriate procedures even including those under the a p a were follow honor i will keep it brief to address a few points that my sister council made if you turn first to page two forty of the appendix record heading three in the closing brief of the agency states the agency was not required to offer appellant paid leave nor established paid administrative leave would have been a new bird if that doesn't scream were not interacting with were not engaging in an interactive process nothing really done this judge jury to address your question earlier that i wasn't you unable to answer specifically on page thirty of the appendix record on the final page of the initial appeal to the board below in the conclusion and requested remedies section number four is a request for the board to order payment by o p m for any and all lost wages from the date of her indefinite suspension without pay to the present and finally up close  the right to be free from discrimination is a fundamental right we know that all the way back from your quo in the late eight hundred s the government should have to use  i did your honor because we just because the fit the failure to provide accommodation under the a da is discrimination so from a policy perspective i would urge this court to have the government in these kinds of cases we all know that national security is of the utmost importance especially after nine eleven the government should use  not a sword when carving out the right to the national security provision as weighed against the individual workplace and civil rights means home on a sledgehammer yes  are again here to ask for a jurisdictional clarification stating that loosely i won't would never tell this board what the state but what we're asking is exactly what was discussed while my sister was up here even means that the board can't look into why the agency suspended a clearance because that's within the agency's preview but that doesn't mean that there's not a discrete all alternate issue here in this case whether and during that investigation into whether she should get her clearance back was a special agent cutter and for that matter any federal employee intitled to an interactive process in accordance with the a b a usually transfer to a non sensitive position is the best answer either in the specific office or within the region  in the alternative shorter periods or longer periods of continued paid leave while the situation is worked out or ideal i do respectfully request that this court reversed the board's lack of jurisdiction decision