notice was rescinded because the agency got the g s level in correct so they corrected it they gave her the notice of removal and that was in october twenty fourth two thousand and fourteen for so so this device that dispute when we got forward through the case your honor we talked about several types of accommodations or issues that were going on for example we talked about how agents working minister interviews where they would not regularly based on the interlock restriction but they kept her on administrative duties further those evidence and hearing that basically there was a me group of agents that would not be out in the field so to speak driving vehicles as you can imagine the border patrol has a multitude of levels of responsibilities and duties well how much how much was proved before the arbitrator about that i thought that  i'm not recalling that the record before the arbitrator insofar as such a milieu with it made clear that it was you know a sufficiently common arrangement with in the office that there would be people who just could quite easily be spared from even the possibility of having to drive a vehicle such that the arbitrator of this record could vehicles that places a burden on that on everybody else why couldn't the arbitrator accept that testimony thereby going to be limited in what i took to actually be the heart of the case which is why couldn't they have just left her on administrative duty for that year until the license restriction lapsed and i think the record shows that there was country country that contradictory information about the usage of vehicles for example leave in the in the in the the station as opposed to being out in the field eventual e the arbitrator and this is the crux of this appeal is the crux of this appeal doesn't go towards whether or not she had driving restrictions or whether or not the agency could have accommodated her by allowing her to work administrative duties for three or four months before she was terminated with this with this appeal for this war and it's very direct is that this arbitrator and his analysis is the reinstatement program and i actually think if you had gone into the analysis of basically weather for three three more months was he divided condition of employment and he also discussed with disparate treatment in other words how she was treated compared to other agents of the sector in both parts of his analysis he cites the reinstatement program as a controlling factor on finding on behalf of the agency and not misled i thought the article cited the condition of employment the fact and that he found that it was harmless meet the conditions of employment both before employment continuing during the term of informant and found that this far could not perform her duties without a valid driver's license and when i look at some of the various conditions of employment there seems to be quite a number of them  a valid driver's license apart from the specific requirement itself that the person have a valid driver's license so so matter that can be considered by the arbitrator writing to reading is decision in its entirety and reading through all of the analyses that he did including the analysis relating to her failure to continue to meet the condition of employment the comment about while shocker is more persuasive because she could be reinstated seems to me he was simply saying and by the way i feel i feel comfortable with the decision that i have made and feel comfortable that it falls on the shofar and the knowledge side of things rather than street and morgan but i think that's simply a conclusion not the sole reasoning behind his decision and it's more of his exclusion of consideration for example the precision sense of a sentence makes clear whether anywhere in reading i'm reading from the bottom appendix thirty three i said doing is excluding the consideration of the removal of her impediment for months later she's excluding consideration of the cases cited by mr potter said that you can consider this i'm not considering any evidence or for our legal argument that she could be reinstated and that's where we think the factual legal where error occurred especially including the fact that the reinstatement program on its trace only applies  twelve and up we we pointed that out in the brief we pointed that out that it was a red herring and you know frankly you know not only does he use that in the condition of employment analysis but again regarding this writ of treatment he again he says the arbitrator lacks authority we believe the legal heir cams from him not even attempting to address the union's arguments regarding the impediment so heavily just to how like that we cited the the testimony that we are talking about the testimony of what actually happened in the arbitration the arbitrator didn't ask like why do i even have to pay attention to this program why is it important hearing and the february twenty sixth all creative decision that condition had last at the time of the arbitration of the decision that that that restriction had gone away in fact he went away three to four months after the removal in april two thousand and fifteen so about time we get to the arbitration which is six or seven months later and we get to the decision which is ten months later the restriction is removed and that's why  her option to to take the reinstatement program is used as a factor in his decision making in this decision based on this pretreatment how it was treated compared to other employees and they see also in regards to his interpretation of the efficiency of the service is supported by substantial evidence the arbitrator in his decision goes through the substantial evidence in the record before him he quotes extensively from the position description arbitrator relied on first of all of it there was no factual on the stake there is there are two agency memoranda in the record before they are a traitor one is the memorand two thousand and eleven and then there's a memorandum from two thousand and fifteen which was actually issued after she was removed the two thousand and fifteen or miranda memorandum puts the authority at the local level and it states that individuals can be reinstated at the local level the decision can be made for any one g s fourteen and below j s fourteen and below is a quote from the two thousand and fifteen memorandum i think their argument is based on the two thousand and eleven memorandum that memorandum does not say that it is limited to g s twelve and above it applies to border patrol agents and that that was the testimony that was given at the hearing by chief hofmann a u s secondly does it make any difference it it our contention it makes no difference at all the the decision of the arbitrator is based on it's based on the law and he she it's a correct decision based on correct or correct statement of the law and the quote unquote here he says in his opinion wrote as persuasive authority in a different case the original withdrawal of the a palance eighty c s sophisticate was held to be directly related to his qualifications to perform the duties of an air traffic control specialist position that's the thomson case from the embassy b he goes on and then he also cites to curry versus the department of housing urban development which is a case where a employees law license was suspended or revoked and they could no longer perform their duties as in their tourney and they were removed so at that point of the opinion of the arbitrator he's stating that those are the persuasive authorities that he is relying on he also had before that witness opinion he had cited to  that all these are one year revocations of driver's license an employee's car removed because they cannot meet the conditions of their employment players can i ask them and this may be maybe just a curiosity but  though there is knowledge about that e s r i would point out the she was removed on november twenty fifth two thousand and fourteen the three year period has not let yet elapse elyse is a three  has three years to apply under the agency memoranda and if she applies within that window she doesn't have to go back through the academy now that's not saying that  she will get i'm not making any sort of representation along those lines because there are all these requirements you have to be physically fit mentally fit background investigation every everything has to be gone through but the window still there to answer your question it's more information as of yesterday that she had not a miscarriage or of the arbitrator said i'm on the bottom of appendix page thirty three so the arbitrator is ok and as i was just saying that that the majority of the argument before the arbitrator was directed to the fact that this was a a temporary  only one year and that it had gone away by the time of the hearing the arbitrator or i wanted to point out in his decision he specifically credits the testimony of the assistant of the deputy ch who's acting as the acting chief huffman that keeping her on administrative duties would have wasted a border patrol actually agent position and  attempted suicide and because of that she was deemed medically unfit to serve as an agent and her weapon and her badge were removed she couldn't be able or difficult and for that period of time  she was restricted to administrative duties and that restriction went into effect believe it's in now i can't recall when it when it when it started precisely but it started when that incident occurred and as recently as december of two thousand and thirteen the department psychiatry's still deemed her  fit and then the traffic incident that she's involved in occurs in january of two thousand and fourteen and at that point now she has an additional problem because now that's the record tell us anything about the status of essentially the medical based assignment to the office but what i'm thinking obviously is if it were quite clear then that she was going to have to stay in that status for the medical reasons for the next six months and i wonder there were two cases proceeding independently and in the case regarding her medical fitness after after december of two thousand and thirteen they had presented this power through her attorney presented evidence that she now was fit for duty they presented their independent psychiatric report that there should be no impediment to her serving as a border been a decision by the agency agreeing or disagreeing with that but assuming that the agency agreed then she would have been returned to border patrol agent duties so mean that she didn't have a problem with a license she was never mean she was never fired so it's not a question of being reinstated because you're not fired you're not terminated i guess what i what i was asking about before was the opposite assumption suppose that the agency had said on the medical service we disagree with you we think you still need to stay in the office and what's against suppose it's and we still think you need to stay in the office until the may twenty fift at that point the absence of the driver's license couldn't matter to the job that you were going to have her do during that period if the agency had disagreed with the report from her independent psychiatry's and basing their disagreement on the agency's psychiatry's presumably the agency would have then gone forward with that and made a decision because they saying she said so then then it's up to the agency to evaluate all the evidence before them make a decision but that was put aside b because frankly from the agency if you point it was totally irrelevant at that point she couldn't drive she needed to have filled by a border patrol agent and so he went forward and when you listen to that and this is what got me asked me questions i'm not sure that that's a that's a legal basis to remove somebody at the a border patrol position well and the basis the reason she is removed is because she cannot no longer meet the conditions of her employment ok well that's different yes yes it is  different and as he said in addition it's he could no longer accommodate her it is wasting of position and he has to run the office but it's precisely because she can't function as a border patrol agent wasn't taking all was rationally connected to the efficiency of the service that's a factual finding he made it supported by substantial evidence on the record and we think the court should should  the languages for example of disparate treatment there was there was evidence of another agent agent dog otto that what that basically retained his job for almost identical circumstances same charges did you why all those things same state so he has the same restrictions when he specifically says us no but your case is different response because the provision for reinstatement was administered after your case in other words you're eligible for reinstatement and that's why you're not lik after their decision regarding the impediment should be reading concert together now and that's what he specifically said is no those are two separate matters that we're that i'm not going to intertwine center throughout his throughout the arbitration throughout this decision and even in this argument ok to say that it was a harmless error i think is a stretch doesn't based on the evidence i was before them the matter and also if i may the complication of this was that she was on and ministry of duties for a medical issue the agency never removed her from that status prior to going for do this removal and again those were the refactored that were just not paid attention to by this by this arbitrator because of the reinstatement program ok thank