he was a preference eligible meaning that he was an individual who had previously served in the military and as such the process of the way that he had applied for the position  thorold's chose not to select him as a highly qualified candidate there there was a task over process and there's a need to justify the reason why he he would not be selected because that also included the act there the person that was applying for this current job only gets one chance to complete the three it's like being told you only get negative our exam wants you want it you don't get to come back to you're not welcome back that i had not seen as equal qualifying factor i did not see that anywhere and i'm looking at record page twenty one say that if if an individual previously failed to complete law a law enforcement training that that individual would be precluded from applying for a position  pressure and the issue in this case is whether whether the individual was deemed to be unsuitable for the position as opposed to latin as as a opposed to being found not qualified for the for the for the decision the the agency's own documents the human resources specialist indicate count was passed over because have to look at the underlying reasons and they pointed to a regulation i've seen ever seven thirty one to two that contains in this specific factors that lead into  carry that in your library was to say that the regulation is looking for suitability purposes for misconduct misconduct or negligence implying a criminal or dishonest conduct false statements skills education or experience there was never ok there there was never an administrative hearing in this case and if there were not a suitabilit determination then the determination would have to have made indicate that it was unqualified because of his lack of skill his lack of education or his lack of experience there or there is a big issue as to whether this is a semantic concept or a or if or an issue of fundamental calm the concept of what constitutes a suitability determination versus what constitutes a and that occurred two and a half years earlier and in the intervening time you happen to have been in law enforcement in a state agency or a local agency and have  additional skill i suppose it depends on whether one test only is what the agency means for example or most states i think let you take a bar exam two times or three times and then no more you're finished no matter how many objected because he failed to qualify but it doesn't matter when they take him off the list in so he doesn't get considered or they leave him on the left and they say we're not going to take you we're going to make our discretionary choice because you failed the training then they look and see that he failed the training course and he subject k'naan selection which is not appealable so he couldn't even be here to say i should have been selected if it went through that  which would which would establish that he could not be qualified for the position there's absolutely no evidence in the record of of of of that the the actual determination made by the agency was based on this pick to kill or individual not having passed the not having completed the law enforcement training to two and a half years ago what if it were five years ago what if it were ten years years ago what it what it what it is what about the application what about the applicants who have applied for the position who didn't have law enforcement train are they more skilled do do they have greater education do they have more experience this was a determination that disqualification oath of the application was based on the suitability determination not  qualification standard but want to disqualification standard and from a conceptual point of view disqualification standard is is is a decision made or unsuitability not one qualifications what if he were the most qualified law enforcement person in the world he he had it vanished education and he had demonstrated experience working for a licensing authority gets to choose how many times you get to take a entrance exam there there is there is no question like the determination that he was disqualified is a suitability determination because it relates to him into the if i just ask one question and that is his this is a factual matter we are reviewing there is a legal issue the reason why i ask is it affects our standard not certain you want to say that because it was a factual decision then our standard of review is quite on they are going to you because it's a question rather substantial evidence to support that decision i'm not sure in my own substantial evidence mr chicken brought his claim after not being selected for park rangers but what about this point that if in fact there were also met facts that were found by the board without the opportunity for the i mean in order to sustain the board's decision that this was not a shoot ability call it was a qualification call right you have on the table that it's admitted that he did not complete the train regulation no drug abuse there's no dishonest data no criminal behavior all those things right and show the question for the board was what fact is there in the record that would support the notion that this was a suitability call as opposed saying just assuming what he's saying is true he hasn't stated a prime aphasia case because failure to complete that training is just not the kind of thing th suitability regulations address it's just not a suitability determination  that the reason the agency wanted to pass on her first suitability or consider doing so was because his his background investigation had been adjudicated and his background is found to be unsuitable for law enforcement what does that mean unrelated to the agency's this is an issue here and in any event the court ultimately has to turn back to the suitability regulations and it just cannot be said that the determination that the agency made here  allegation that he was denied employment for any reason other than haley failed to complete the test the first time around yes your honor i didn't understand that there was never any thing to dug up in a background investigation that he failure to complete the training and he's stated again today that there's no dispute about that but he has referenced the suitability form that was filled out in this nangle and that i'm just pointing out that that has a different potentially different reason listed on that