the first of them is fairly straightforward the requirement for misconduct before the board was that she presented in order to be entitled to a jurisdictional hearing as it should present evidence which if proven would  before allegations which if proven would establish the board's jurisdiction she did that she alleged that she was based on her record with the postal service of over ten years of service based on her expectation based on what happened to other similarly situated at the same location at which she was hired that she was for all practical purposes a permanent employee this was not a job where she went in to the postal service and expected to be terminated at the end of a period of time in fact she understood that time to be her vacation time and she was of course paid off her crew to leave with the government and the board arguing what is what they do repeatedly and the board's decisions in the briefing is treat this as if it's a substantial evidence case they treat it as if mrs hobbs allegations are too conclus are just not sufficient they she did not submit anything to contradict the documentary evidence provided by the fifty's the postal service submitted and what she didn't ask you i mean hypothetically let's say we have a record that shows a fifty show that even though she's been there for ten years she was on ten consecutive one year term when that appointment is in in the face of that overwhelming evidence sufficient for her to record evidence we have the only documentary evidence is s f showing all of it's a term appointment and the employee comes in and says i thought i was on a career equipment is that sufficient to be a non frivolous allegation is somewhere in between where you have an employee coming forward and saying i am a temporary employee i am you know i was hired for one temporary shift and therefore i am you know entitled to restoration ri cute nor the argument number two at this stage there's a line between that and this case and i think your question would where is the line though because it seems to me that basically i mean there's a she had expected to be pointed to one if she had not been injured but that seems to me to be different than she was actually a career appointee wealthier than everyone else was i mean everyone else at her location was appointed i mean does people work also in appointments term appointments or automatically converted they had to apply for one be accepted into a career point session just like she was given the opportunity to do right while the collective bargaining agreement letter that i think is it a one twenty four through one twenty seven there's a i guess a summary of it and then the actual letter shows that in fact people that were appointed with their i mean it actually proves her claim that everyone else was transition for permanent status so i think that the answer is that everyone lives and that the only reason that she wasn't and i think the m s p to be actually acknowledges this on page six of the board's brief that these people could do this and i think that her allegation is that the only reason she wasn't given that similar opportunity was because she was out because she was injured twice in fact on the job so but here's the here's the problem it seems like you're going backwards on the you're going at it that been given her restoration rights properly she would have been a career employee and therefore she would have been entitle to appeal to the board to argue that her restoration rights were given properly but in order to appeal to the border of p m s regulation you can't be a time limited employee when i think your honor that gets to the second argument which is whether or not you know that's correct whether that's a correct interpretation of the regulation whether that the statute itself does not confer purity so if over here an elected to it could have chosen not to get anybody appeal right over restoration that's right that is an interesting point your honor and i'm not sure i'm able to answer  that that's all there are plenty of statutes that distinguish between appeal rights and on a field rights and this is an instance where there is no appeal rights whatsoever and o p m exercising another separate statutory authorities as which allows it to be to provide for appeals to the board said we're going to give it a career we're not going to give it to temporary is that inconsistent with the statute that didn't give appeal rights at all i am not certain that in the statute as i sit here today because i haven't thought of the point that you're on a raises of that there is nothing in any of the statutes that provides for and not this specific you know it one five one but in the whole act were elsewhere in  regulations to distinguish between the two that is not arbitrary and i are not well aware of it it isn't that inherent and the civil service system as a whole that  isn't that per se reasonable distinction that o p m could have made between term limited employees and clearly i don't think it's per se a reasonable distinction because you have two years specific statute has to be tethered to the statute there are other statutes the purees and other regulations and those decisions for example do not would not allow someone in this cost position to appeal to the board if it were a removal action for example those are based on different statutes  different policies and i think the court would have to look at each individual wanted to see if this distinction that o p m drew is one that is it's reasonable but i think that it's not something that o p m drew in the first place  p m nowhere signified an intent to determine the appellate rights it purports and the regulation if you read it as the board and the united states suggest to determine what restoration rights are there it's not reporting to determine who has the right to appeal because in the regulation if anyone has restoration rights they're given the right to appeal to the board so i don't think that's a distinction that o p m droop and i don't think it's a distinction that wouldn't be random yeah and i know you don't probably search dan's i think that's that's maybe the correct reading that seems to me about restoration rights to be inconsistent with the statute potentially but th doesn't speak to appeal ratings so they could have limited term limited employees appeal right but maybe not restoration rights and i suppose your best argument would be that's arbitrary because this regulation doesn't really do that it considered this and that you know was intended to do that but if that reading of the regulation is correct and i think the court understands that reading that i'm arguing for which is something that would avoid the tension with that controlling statute if that were the correct reading to employ i don't know how to get around there for the regulation except where finding it arbitrary and capricious which i'm not sure you argue for in this way because it seems to me that the regulation is very plain on its face that it only applies to appointments without time limitation or this other tape or thing which i know is not at issue and so if the regulation only applies to  where that goes and whether that's modifying the clause media person mediately proceeding or whether that's modifying the original beginning of the sentence the talks about any employee of an agency of the united states and one argument supporting the construction that the who applies the wholly owned instrumentality of the united states is the fact that regulations are supposed to be interpreted consistently with the controlling statutory authority to avoid that tension well that's the case then when we interpret it as allowing restoration rights two temporary employees but not appeal rights because they said no appeal writings and no restoration rights clearly under the statute they're entitled to restoration right well clearly they're entitled to restoration rights and the way the regulation goes through the series of regulations is that if you have restoration rights you just get appeal rights so they didn't drop distinction and i think that's the problem the agency didn't actually do it so the court i'm not sure whether they did or not it's hard to tell but they did well i think it's i think what they the way this is structured what they intend to do is give a kinds of restoration rights and so they added in the recovery from injury rest rights rights to the return from uniformed services and the statute for uniform services i think makes clear services excludes trumpet employees from restoration rights altogether but when they added and the the return from injury people they didn't seem to modify the language and i don't know what they did all together well what they i mean what they did was they are this is it right and the statute one five one simply says that it applies to folks both classes both they recovered within one year and the recovered after one year so it would be arbitrary if the regulation is in fact i know you're unsure about all the time but are you contending that she was recovered within one year and has an unconditional right or that she was recovered beyond that and i know this is beyond the jurisdictional point but given that she was in a term limited appointment that's expired if all she's trying to get into is the agency has to make a reasonable effort to return her to her position that position no longer exist can't they just say isn't what's going to happen on one remain and if we give it to you they're just going to say there is no position for you or to return to you were selected for this other position just what all she left of it but there are no term limited i mean and positions of that in existence anymore as my understanding there are there are three positions there's the permanent position of the letter carrier there is the c c a musician which is what is talked about in the appendix a of one twenty four to one twenty seven and then there is a position that she occupied which is that the transitional employee position and so all the ts i mean which it would show what they're what the evidence would show if you are entitle able to present it is that all of those people who were ts were in fact made ca's and they're all of them in fact are still there and i think that that distinction goes to the time that you you know  factually that she wasn't entitled to which she wasn't given the opportunity to present i think that she was basically allegations again she worked at the same place she was treated i think that everyone there must've had an expectation that she would come back year after year after year after year which these regulations come usually have your definitions at the beginning that's exactly what this is here persons covered is the definition of who falls under the regulation and then you have the rest of the regulation telling you what your rights are if you fall under that category of  we do with us if we find that the regulation excluding term people from restoration rights is inconsistent with the search area but we don't know whether a pm would have given appeal rights well i'm to be clear i'm not conceding that it does and i think i said yes if i have if there were i would i would have to say that if there is a clear conflict in the statute then that is problematic i don't think there is a conflict in the statute i think the statu  the basic so let me ask you the question i just ask your friend let's assume that the statute cover both career and term limited employees for restoration rights and so that part of the regulation that limit there's nothing in the regulatory i mean i looked very hard and he did not seem to me that there isn't any paying in the federal register of history that will making and this statute of was for pro active like nine hundred fourteen that discusses these distinctions and whether or get appeal rights if you are a poor employee but not a term employee but you get restoration and right talk together the dimensions the distinction between those types of employees with respect to appeal rights or with respect to restoration but i think it makes sense to make the distinction with respect to rule over you know no you're right i mean if you read the statute your way and say the statute only applies to career employees then everything  about after the injured employee regimes regular full time employment with the united states so that the term resumes means that they just resume to work while regular full time employment and our position  yeah i mean this is the problem regular full time employment doesn't have any real meaning and civil service law they don't mean i'm not aware of that kind of term being used to refer to either career or term other employees who are just as easily read  explain or provide an interpretation of that term and that it can give us a new word for think that it means only career employees i mean i guess your answer is that's what the regulations say so presumably that's what they meant and specifically five see a fart three fifty three one of the three b talks about what they mean by employee and again it goes back to the nature of the temporary versus permanent type of positions i well except that it could make sense to offer restoration rights to term living employees and sometimes terms are twenty years sometimes or two years if you get injured on the job you know three months into your to your appointment you recover six months record i want to return to point one that i made which is the point that she gets an evidentiary hearing a lot of the arguments that are made and there is a summary of it there's a list of them and i think we've responded to them in our brief  are directed to what she would have presented had she been given the chance to provide evidence what happened in this case as it got to real very early in what the board of its brief and page five incorrectly refers to as was at a certain point in time because you never actually was formally converted then you can't bootstrap the regular restoration rights to a court her career rights that would then entitle her to rely on the rest shows that she was converted you know that she was a degree from an admonition so she was hired to do a job that lasted ten years with the postal service where everyone else was treated in a way they were given a permanent job at the end their given a permanent job they weren't in a permanent job well that's my again that's my language of this argument but what actually happened was she was hired they were hired they stayed at the post let me ask you this so  because of what was being done in the postal service at that time so if you answer to poor employee and they didn't let her come back to work she would have had the right to appeal this as an adverse action wi this conclusion but in this case you aware of any case where somebody can claim just because they served or in aaja term or that an important appointment and that everybody else got converted that they were defacto convert a where the court it's a nonpresidential but the court talks about it being a totality of the circumstances test and the point is that she has the right to demonstrate from a totality of the circumstances what the nature of her employment relationship was because of the access fifty's don't control and that's the only evidence and again we're talking about evidence that she has the right to dispute to impeach to do whatever she wants with it and present her own full at an evidentiary hearing but the only evidence that they rely on is the s s fifty's so they're not saying there's no contention contrary to her allegations that in fact all of the people who were hired in this way