service with back the word disagree with you about the break in service and to conclude that under the regulation there was a break in service here and were confronted with the e retirement or resignation cannot indulge last appeal to the board and say because i was given improper information or i was forced out or the like that that becomes a involuntary adverse action a political to the board that's like coming to draw a line on his and it generally my understanding your honor but so that's talking about what's an appealable action versus who is an employee entitled to appeal isn't it i'm not sure there is any real distinction between the question of who is an employee and what is an appealable action or shouldn't you say this is not if you're if you're an employee you get a title to appeal an adverse action you can if you're an employee not entitled to appeal even if you're subject to an involuntary we were to hire men or the like it probably wouldn't happen to retirement because you are too far out of a resignation say if you're six months into the job and you resign and then come back and that i was forced to resign you have no appeal rights because you haven't acquired them yet as an employee with and seventy five a level isn't that right you would not acquire them if there had not been the time here however we have a situation where you have an employer and the facts of this case are perhaps hopeful you would have someone who is clearly an employee at the time to change positions and so the act of changing positions functionally removed an already vested appeal right so i think there  rights that i believe would take us back to the opening question is whether we're to assume that the opium regulation of a break in service would apply to any time you're not at work for a particular day regardless of is your honor respectfully i agree that the regulation states a break of more than one worked or one and more work days but that doesn't tell us what qualifies as a break for instance the board  consistently held that entry into a non pay status is not considered a break in service even though you are not in fact appearing on for it one of your workouts because there is no separation do well you know you're there may be there may not even be a personnel action at all there may just be author already for you to take leave without pay or some other kind of not pay status but when you actually get a separation document and you have that here  have a specific personal notification saying your client is being separated from the r c a station and then you get a new one that makes his appointment to a new c c a position affected five days later that's a break in service  at whether they were separated you look and see whether there was a separation document again the separation is reflected in the separation document that does not necessarily suggest that there was a complete lack of continuity of employment that offer you can be revoked too until you actually get formally appointed isn't that right and that's my understanding so he actually had no basis to believe that he was going to be appointed int here can be found in appendix one fifty seven at appendix one fifty seven the same p s form fifty eight that establishes that mr williams was being separated from his position as an r c a also we can knowledge is his reappointment into position as a c c a and it states that he has a lasting in a peace status of april to two thousand and fifteen mr williams did not understand himself to be terminated from the postal service my understanding is that comes from the collective bargaining agreement with one of the letter carriers unions and if the purpose  i don't fully understand the purpose for all of the breaks in service it would appear to be that certain of the breaks in service are required so as to avoid a certain union of benefits that otherwise would be obtained if more than a full calendar year of service were to be served and so for a certain positions a service time of three hundred sixty days has been set and it's required to take the five day break at the front and i understand  employment and this just to set this issue aside i'm well aware that this court and wilder decided that deference was afforded to this regulation for purposes of what type of service would qualify under the boards regulated under probably work that they break up a work day the what remains a question and your honor i don't have a dispute with what a workday is the question is what is a break is a break or a situation in which you for you right here for instance he resigned from one agency and went to work at another agency that's something that this court has clearly addressed as something that's outside of the agency what if i'm an attorney at the civil division of the justice department and i decide to take a job at the u s attorney's office and back in my home state of ohio and i decide either really hard at the civil war because they're working really hard and i want a three month i get an appointment i get a separation paper i get a new appointment paper three months later that i've already accepted an offer is that operate in service i would expect your honor that it would be and the difference in the character of that so what we're seeing here is one of volunteering us in that situation and the government employee is voluntarily of leaving the government service for a period of time and then returning to government service this court has decided that voluntary that's a question because i think that's another aspect of the case as a party doesn't really deal with what's a break a break in that whether it's voluntary or not you may have that someone to help you come out when it's an involuntary break but that doesn't really say anything about right so why is three months a break the five days is it your honor i would not qualify  three so terminations on career is the designated description of those assigned to nature of action code three fifty two which appears in box seventy seven that's a standardized set of codes to be used in boxes seventy seven of the at this point your honor i'm directing you to the remarks section near the bottom of the page we have lasting and pay status april to two thousand and fifteen a separation employee was separated for required a very conservative reappointment two different position and get into a judge refuses question which i believe is tied to yours your honor it is our view that it required a break in service under the union contract does not qualify as a break count and as soon as they get a few days into their second one they now have appeal rights just runs contrary to everything that the c b i stands for i mean it requires a break in up at the c b i i've sure that it postal service people will tell you that he has generally postal service employees your preference eligible have either the select option of going through the grievous proceedings or through appeal review contractual provisions that's something that perhaps f r a can do but that's not something that's within the amestris jurisdiction my understanding of the c v a though from my reading of it would be that the five day break in careful about how i addressed here because i don't want to delve into giving an advisory opinion about what you would do on remand when you are correct that it comes out of the covington line of cases about making informed decisions and only being found by informed decision severe i understand you do this crushing honor and it's something though that we are barred from issuing advisory opinion by law and if we were to answer that question in discuss well i will i will say yes the coming to a decision is about adverse actions and whether something is an adverse action and the x amount of cases stems from that by extending the doctrine to say that  other not or other uninformed decision to also not be binding but whether or not that's an appropriate interpretation is the reason we're seeking the remain and we would like to examine that further and see if that is actually a valve doctrine even if we kept that doctor and wouldn't the involuntary action here and the adverse action be his resignation from his r c a position it would have nothing to do with the c c c c a position resignations are directed to that decision being made without a lack of knowledge and if they show that it is its truth then they usually get to rescind that decision it rarely happens but i think it's happened a couple times but it's that decision to involuntarily resign made without proper knowledge that is the adverse action that can then be appealed so how would it affect his status as an employee for a subsequent position at all how can other work how can the involuntary action doctoring if you appeal rights in a new position versus just let you fully exercise your appeal rights for the questions and hypotheticals but maybe you have been directed not to answer but it seems to me the logical extension of covington to these cases and the way this is been applied is always to the decision that is alleged to have been involuntary which is here to resign the r c a position and accept a c c a position so that the decision to resign is involuntary and that's where he is appeal as f want to allege an involuntary resignation that would be something before consider but that's not how this issue rose to the board it's just whether or not he was an employee with appearance what is the board's position retirement resignation is that it is retirement resignation involuntary under the board decisions of the employee is not involved the vibratory resume in the years she is surrendering the right to challenge the adverse action on involuntary resignation follows the covington doctrine which is incorrect information presented to the hearing by the incorrect information the failure to would volunteer to surrender appeal rights is that it but i'm uncertain as to whether or not the board has found lack of information to be the equivalent of misleading or incorrect information undercutting to benefits and how that interplays with the three hundred sixty days of the c c a position that's the best explanation we have in the record whether there might be other explanations on the record as to say why the union agrees to the five a very conservative that's it's appendix four forty nine and runs through forty one and that also includes a part of the collective bargaining agreement so starting at four forty nine civil service would agree with that so in the collective bargaining agreement it does the syfy say that a transfer from an r c a position to a c c a position requires a five day break it actually does use that word break which mimics and parrots the regulation just uses the word break so yes in that instance the postal service would argue that collective bargaining agreement actually mimics the same language in the regulation and that if you break as that defined in the regulation is what was intended right a break or an interruption and service of more than a workday meant to interrupt the current continuous service requirement necessary for board appeal rights in the first instance is there any way to grievance provision that would apply to mr womans but again the entirety of the collective bargaining agreement is not the joint appendix and i honestly can't recall if it's in the records from the administration preceding flow or not or if it's only a portion  d but it was wrapped up in a reduction in force so that brings them into question whether or not the resignation is truly voluntary or not that is not the case here this mr williams was in a position as a real carrier associate he could have continued in that position had he wanted to he instead applied for what is what presumably appeared to be a better job as a c c a and he got it just like many federal employees will will apply for other jobs for various any number of reasons but that's because his voluntary act and from the postal service perspective it's there's no basis in statute or regulation to impose a duty to advise and employ an individual who is looking to switch jobs how their rights would change as that duty to advise and this is a spouse an ex some it's also a duty that has no limits and is unworkable and has been unworkable and in practice which is why we are seeking to have this court overrule that line of precedent the duty to advise as originally espoused by xom has only been limited by another n s p decision park to apply only t intra agency transfers as opposed to inter agency transfers from one engine to shift to the other which certainly is one helpful limitation on the doctrine but it doesn't the cases have been in consistently applied as to whether or not the duty is only triggered if there was a notice that the employee was under some misapprehension of their rights sometimes misapprehension is required sometimes it's not there also would be no limits if the logic underlying the duty to advise and x if this court were to find it sounds well then where does that duty to advise and right does it end with just board appeal rights or does it extend to health benefits or retirement benefits or you know other factors of of employment the list is endless and the board has not adopted the duty to advise in any kind of cabin and or reasonable is not good law it's not good law so is it regrettable perhaps that rodent was was in the in force for as long as it was arguably yes but to the extent the board has now corrected an error even a long time error it was an error in on the lesson jurisdiction is jurisdiction as defined by congress it's not defined by the board it's not defined by voluntary employment agreements between federal agencies and individuals the congress has spoken it has said that current when your current continuous service is required in the first instance we argue that that word in the statute continuous has its plain ordinary meaning to preclude any interruption of service  jurisdiction it isn't title to some deference when it's applying rules of it's own procedure but in the context of jurisdiction we would say that that's that's not something that would be entitled to deference but again we don't get there in this instance because the unambiguous statute then we shouldn't need to look any further than the statutory language itself the current continuous service here we have an appellant who served continuously in the postal service and understood himself to be service serving continuously was impermissible construction and we weren't really interpret in a language continuous wrote in itself says this is what we understand continuous to be when there is an effect of on going employment contract and such years i knowledge continuous employment contract in writing was intended to be an equitable notion recognizing that there are government positions that naturally all rolled into a repeated occurrence positions as did the situation here where we have an employee that was placed in