a question of law or an issue of law by concluding that the postal service had provided miss the with a reasonable opportunity to pass the physical examination requirement of reinstatement as a lower court correctly acknowledged the issue of reasonableness is typically an issue of fact to be tried there is no exception in this case heard it permitted the postal service to incorporate p s form twenty four eighty five into the interpretation of the settlement agreement what is up there a lot of issues and questions floating around but i guess i just want to get to the heart of your case or at least what you think your strongest point is is it with regard to the fact that once she got the letters i'm late december she asked did reasonably and diligently in doing it or is it about this other stuff like they should have never imposed the seven seventy pound requirement at all or what the primary issue is when she became aware of the issue with the lifting restriction and is being given enough time to cure that deficiency so that is the crux of our case is that she was not provided a reasonable opportunity from that time i believe the lower court analyzed the date to determine reasonablene so it is our argument that misapplied the date the date would be the origin of the twenty pound reproduction in the general requirements for this position she during mediation she had an injury a personal injury understand that what was the origin of the twenty pound risk reduction in the normal requirement origin there was no origin where did it first appear on the wrecker the twenty pound restriction didn't appear in the you mean the medical records or in the record on appeal when do we first hear about compensation a different program right and he introduces it to the united states government every crazy that they would reduce the requirements for this position ye stated during the mediation there was an agreement an understanding that she had the restriction at that time and that they would permit her to return now keep in mind that misty had never had to lift seventy pounds so this wasn't a real issue however the form which is form twenty four eighty five which respect my argument was actually incorporated into normal house that is correct so you're suggesting because they knew that before she sun the sun i'm in agreement she had been under twenty pounds restriction that necessarily that instruction was incorporated into the agreement well she knew yes yes that that restriction was that was that was that restriction no there's a parallel procedure not proceeding but this is parallel life going on which is collecting workman's compensation and i assume the letters there w say twenty pounds the limit is twenty pounds was related to her ability to receive the workman's comp no no judge in the letter can you explain to a yes  but the doctors in the workers comp program have to determine whether you are fit to return to employment and when you are again terminate benefits so doesn't the twenty pound requirement have something to do with her i thought i saw my record but she went back to dr program in february two thousand and six and then ultimately got the twenty pound restriction removed and then there because of that the workman's compensation benefits were thereby terminated that's right yes i understand that but at the time that she entered into the mediated settlement agreement the twenty pounds restriction was already known and the pardons agreed to that that's what the lower court stated we could not get any parole evidence in and what contradictory about that is the lower court specifically allowed parole evidence and as it relates to p s four twenty four eighty five when it's paid it we have to actually get the form that says a seventy pound restriction on and incorporated into the doctor but in essence that's what it did because it ordered to know what makes a person able to fully perform the job function as a settlement agreement stated you would have to pull that document from some place mrs feet was not provided to document until december two thousand and five so when she was placed on notice that this was in fact the reason why they were saying she could not be reinstated that she had removed because she had taken all the steps in order to be reinstated she needed a job at that time she was unemployed and was an employer wasn't what what's the content of the letters strongly suggest if not actually state that this was a long term almost permanent limitation on her abilities the twenty  restriction i thought there was at least some reference in the letters to the proposed service looking at yes there may have been and i believe there is a conflict of information in return for if you recall judge when she went to the doctor in august of two thousand and five for the examination to return dr randall stated she did not need a restriction he didn't see the need for research and therefore he released her to full duty this was in august of two thousand bible only two months after the settlement agreement argued that she should have been able to proceed from that time on in reinstatement even assuming that there was a conflict if you look at the letter removed two months after the settlement agreement in august two thousand and five not in february of two thousand so no i'm suggesting that there were two opinions dr randall in his review stated there was no need for restriction that was his medical opinion there was no need for strict restrictions however there was still no restriction by her personal physician and so to reconcile the two the practical thing to do would find out more which is why they sent those release forms to your client that would sheeple to have been signed and thereby missed their form of speed understood at that point the postal service was trying to get in contact with all these doctors of hers to try to figure out to what extent are they still holding her to that twenty pound restriction misty at all times did not know that this twenty pound restriction as she understood it twenty pounds direction was a part of the deal so the information the report all of the reports you're going to read the records that were in two thousand and five when dr randall dr forwarding to all of the interchanging of the medical claim for damages the wages or the money she would have read that would have to come under what and titling statute required of course under the  tucker act it would have to come under the back pay act or i know i don't believe the back pay act applies in this case because i don't agree it doesn't apply so where does your damages come from well the damages are presumed under common law for breach of contract i mean in what would be the damages but then you can't have damages for a position unless you're appointed to that position that's test than and of course you were never appointed so it under no condition do you even have money damages right the appointment was well part to this in is that she was reinstated this if there was no need for an appointment but even that the and then she would have to be asking for back pay right no chicas she was entitled to pay because she was already in the position see in order to have damages you have to have a position in the government yes but this is a breach of contract issue so even if we say there is no employment relationship a person who is had breached the contract would be obligated if they're found liable to pay the person for any if they had not reached the settlement agreement they would have reinstated her or more put her in this position as of august two thousand and five so the relief she is seeking is the back pay the act under any person came in and they had a breach but they have to have a statutory entitle me to damages in advance in order to have jurisdiction in advance of filing the case where is your entitlement to damages or resent the most you can say is if we would have one they would have analyzed us to see if we were fairly to be reinstated you still had to qualify to be reinstated the most you can ask for is specific performance which of course is not damages you don't belong under the tucker act and therefore you don't have jurisdiction shouldn't be in this court well that right and i know where you're going to go with this because i served on the  claims court as it was called then you're going to tell me well there's no remedy then because they won't give a specific performance in the district court and i'm going to have to tell you yes i handle many of these cases you're probably right you recourse is to congress it probably isn't the remedy well we believe the damages are for any means that we have cited in our brief cases that support that she can recover any damages every thought of breach of contract and i think it was the us name she did under the contract production of this case i had to the speech case a couple of months ago in which he recovered  hundred fifty five thousand dollars that was settlement of the portion of her case that was indeed a bridge and that she received the money and that's fine now we have a separate question which is where she afforded a full opportunity to apply for a job with the government exactly and that's why we are requesting them but whether the point is even if you win that case that she deserved a full opportunity you don't have money damages because she doesn't have a position for which she received back pay and receive back pay but she had damage but she can't ask for that under the tucker act which requires money damages present lead do it if they breached the contract then it would possibly even issues again either because of court of federal claims can't or to the civic performance and also because any right to that pay is tied to an appointment to position the trial court granted that motion in part but speech to amend her complaint in her second amended complaint she alleged that her damages flowed from the breach of the loss of an opportunity to meet the three conditions precedent we again moved this time for a motion for a more definite statement to again more fully articulate why it was exactly that would be different from essentially an award of back pay and the judge below determined that that would be an issue that the best addressed and in discovery as the government's motion for summary judgment was granted on the merits we didn't reach the issue of of the damages any further but we would certainly if discord were to reverse the decision and remanufacture the trial court i think we would still maintain that her any damage as the flow from the breach of contract have to flow from the the breaches that specific provision the loss of the reason why opportunity but she has never been able to articulate as being anything different  from the loss of pay and we also have an additional argument going large as to the failure to mitigate but again i think that those who want to the merits of of any damages claim which the district the trial court didn't didn't reach in this case can i move to the merits sort of why is that not assuming and i think the trial court did assume for probably very good reason that we're assuming that she didn't get any any of those letters and till december so we're looking at what she did between just some early december february when she did go to the goft or have that restriction lifted why is that not reasonable diligence i mean the the trial court kept going back to this whole eight month period or whatever but once you get to the point that she didn't get the stuff until december why is as i said not two months not reasonable diligence we believe that framing the question somewhat incorrectly that the claim that this is making is that that the postal service did not provide her reasonable opportunity to meet the three conditions precedent so it is entirely appropriate to look beginning from the date that the settlement agreement is signed to look to see what is the postal service doing how does it act reasonably in trying to assist her in meeting this so we do think it's appropriate team needed to be able to meet the seventy pound restriction as of the time so i'm going to remember fine no because it's not a material fact understood you did that the material fact here which is undisputed and is unambiguous is that she had been said to fully perform the duties as a postal inspector and that requirement is entirely incompatible with any of you that she could come back to work on a restricted basis and by articulating to her doctors in june two thousand and five that she was going back to work subject to a twenty congress or action and her insistence that she again using term restriction multiple times was subject to a twenty pound restrictions she may have had a subjective belief that she could return to work subject to a twenty time se that was not compatible with the lame language you use i don't think it's not the right way to frame this may be the better way to frame it is she was never on notice that her twenty pound restriction was somehow a limitation on being fully fit to perform guess i think i think the idea of one as a court previously served the fact that she was receiving worker's compensation because she couldn't currently work as a coastal inspector given her injuries but also the idea that she did come back less than the requirements of the person spector where did the seventy pound requirement come from i mean i see there's a medical form and there's option on that it can be low way to medium weight and then there's something a seventy which there is a manual or something like that that can comfort me into believing that the postal service always requires every postal inspector to be able to seventy pounds  staff the only evidence to the contrary that ms brought up was her experience in the past that she had sent her a job and that she didn't usually do anything physically but that doesn't counter let me ask you do you different  are you aware of whether the post service always checks the lifting up to seventy pounds box on the medical form for every single would be postal inspector candidate always that box and not one of the other functions i would certainly be speculating if i were to to say always but that was the evidence we could for that that is the she made i don't know she may have known as well how can you with a value way whether or not she acted diligently and lifting her restrictions if you agree if you do that she had no basis to appreciate that her twenty pound restriction was not sufficient for the position i think her use of the term is a restriction indicates she understood that which what her current physical disability or or status was was incompatible or inconsistent with being able to fully perform the duties of the job so in tune to two weeks after the settlement agreement is signed she goes to dr fogarty represents a doctor so greedy that she is returning to work subject to eat twenty times restriction well she what if she had had a sixty p restriction would that have been an entirely different case i mean you say just because she had a restriction that that in and of itself sufficient well whether she had that to succeed pub restriction with that had been sufficient would have been to the choices that she might have known just because she had a restriction that it was incompatible with her meeting the requirements of getting the strop out and i'm just i'm just wondering with you on what that means that just because there was a restriction so what if the restriction had been in all the letters from the doctors have been sixty hours would that have been sufficient would she have been on notice that she had to get that restriction  but i don't know that she would have been on notice necessarily but the fact is that the condition of her of her returning to work was that she sounds set to fully perform the duties of the position and the pos tal service went through multiple opportunities with her to resolve that question and ultimately said we're not sure let's get some clarification from your personal physician and again the trial court accepted her or her testimony that she didn't receive the first two letters that the postal service sent in didn't receive any response to but let's go to the december letter where it's very clearly laid out to her that this is what it's holding up the problem that she returns t he postal service and says i'm going to cooperate only if you give me a twenty pound restriction under that under that fact that those are was required to continue to assist her because she was asking a term that was different both from the terms of the settlement agreement and also from the requirements of the duty as a postal inspector even ix agreeing with all of that i guess i'm back to where i started which is if we all agree that the first time she was really i notice that they were requiring her to lift this restriction of twenty pounds for some time in december why her getting the restriction lifted in february somehow didn't meet the reasonableness or whatever requirement we're imposing upon her because i guess we're looking at the wrong so i'll take that certainly if the court looks at this between december and february i agree  that looks reasonable morally the court to conclude that now it's reasonable but we're not simply looking at saying she was notified in december she could have and that's the postal service in the summer and said ok i can't get an appointment with my doctor until february please hold on that would be a different story when she comes back and says that i will obtain i will cooperate i live team the necessary information for my current position provided i receive a p s form two forty five with the current twenty pound weight destruction so she wasn't trying to cooperate with the process any longer she was trying to change the terms of the agreement and on that basis the postal service determine that it didn't need to continue down this path because misty had made it clear that she she wasn't going to continue down this path can i take you back was right you know what i'm talking about when you were telling us about him i said the whole intervening case and i i assume that case that could you for him to withhold the right so how if your view is and continues to be that there was a problem of jurisdiction here because there's no money mandating statute for the damages which the how do you distinguish holmes on that on that basis my my understanding of holmes w the plaintiff doesn't have an obligation to identify any so if that's the case then your position the government's view is that we do have to restriction here because obviously the panel were compelled to follow up on weird we're not challenging  any damages as a federal employee until you're an appointed in an appointed position and then you can allege fact right the problem is not jurisdictional it's it's with the theory of damages well actually i'm maybe you can help me out here am i wrong to write that holmes was really not about back pay and over kind of reinstatement type case but it was about pursuing future employment opportunities which is really a damages question right right and again and again in the in the plaintiff second amended complaint her claim damages flowed from her allegation that the defendant breached the specific provision to provide her reasonable opportunity to meet the conditions precedent so so long as she could identify some damages that were somehow distinct from a claim of fact presumably that that word is the problem is that she has never articulated any support i believe that issue of damages and i think we can get to the heart of this to get around the whole back in a issue and the appointment process is to say her last opportunity she was not employed by anything she did not if she had been reinstated she wouldn't need another job she couldn't get a job for years so she had damages and she mitigated or damages in going out trying to find other employment so her official record which the court assumed would have caused damage to personal reputation and resulted in presently do money damages correct richard don't have that situation or what's what you're presently do money damages her presently due money damages and are until she found another job after to being told she's not going that she wants the job but she doesn't have the job so she has no present we do damages but that's test unless you're already in the job you have no entitle meant to request pay for or back pay for that position that position alone but if we can show that she would have she filled out applications she was denied employment otherwise in the region of contract by the government with the basis upon which she would deny is that your allegation that she couldn't get other jobs outside of the government or whatever because of the government's reach of contracts that no i'm not suggesting but you're suggesting she couldn't get this job she couldn't get this job if she had gotten to that but in rather believe emanates her need to go to another job and try to get more money from another employer and so the damages are still there i mean their real for she really can't even argue a loss of future employment can tree well i believe she can because her family her daughter they bought her a plane ticket to said please come apply and she didn't come well she didn't apply because she have so you don't have any damages presently do i respectfully disagree i understand that i believe that the issue that we should concentrate on even if we appeal right then that would be enough except that you had two separate agreements or didn't you know you had it's like you hit i reran did you and i agreed to pay you money and i paid you the money for rear ending you and then we also had an agreement that well if you come over and qualify to cut my grass you would pay me to to cut your grass too right no and i never qualified it says i can start so long more it's all under one contract the settlement agreement height of seven is all under one contract it's consideration fail if they fail to do so then of course the remedy is to open up she would return the one fifty five and open up the title seven case and try this plan do you have anything else you wanted to give us you know i'm well i have a few things i don't want to belabor issues however i would that they are stating that the same pursuit she stated december sixth is the date that ms beat was put on notice and if you review that letter there is no notice in that letter that if she did not remove the restriction that she would not be reached be reinstated what the letter states is we need more information we feel there is that we see there is a restriction there let us know if they had told her that she would have done the very thing the same thing she did after she received that december twenty third letter which was on a plaque categorically clear that because you did not we are now terminating the reading and that's when she knew i have to get this restriction for luke thank you thank you ju