the employees of the rolls of the employing agency in title to this back pay until proper procedural steps are taken that is the employee must be returned to  as if their lawful removal had never taken place and remained there until new corrected adequate constitutionally constitutionally adequate procedures it take for reasons completely unexplained in this record mr morse and was not provided that relief what he was provided instead was a reconstruction you know procedure where the agency said well if we position he was in before he proved that his constitutional rights have been violent mr katter i have a question as to whether this is a final order from the m s p and i are you familiar with a line of cases from our to an agency or in the case of the comics case which is one in this series something that isn't formally a remember that has the effect of agreement where the agency has more work to do before the final disposition the case then there isn't a for jurisdictional purposes so the first place we look to determine whether there is a final order is the board's decision did the board articulate what it believed to be a final order and in this case as we pointed out  expression modified by this final order of the higher order still in effect so the board clearly understood that pursuant to its own regulation that this was final or the other thing that we talked about  of course is the crux of all of this is is there anything left to be done other than simply complying with the decision where there is mere compliance that does not negate the finality of the board but i take it there's an ongoing proceeding from right there at that point but you could do this another time the government argues while you're to sit here too early you should come later and quite frankly you know that if we come later they would have said you're too late we should've come earlier which is earlier order was not filed with that's a difference rather between a reconstruction and compliance and in order to provide status quo and under the yoke of which a marshal was the the court's remedy is to provide a court's precedent when we're talking about a violation of due process violation of due process requires that the slate be white clean do you think they're being room for harmless error argument in the context of due process appeals at each stage of the removal proceedings and employees of title to a certain amount of due process rights at each stage and when these rights are our scuse me undermine the employee is entitle to relief regardless of the stage of the proceedings and in order rather than this court was very specific i think in saying and avoid i find you involuntary retirement another was let me ask it and let more straightforward way the so the board says look if you either give somebody wrong advice or you even don't even blinders on cannot as a matter of fundamental fairness be binding ok forget the name it's that maybe it's christy i don't know i'm sorry i just don't recall what that was but no i think that this court  under the supreme court's precedent it's not you don't look to say well what happened we violated your constitutional rights but what happened is because of it that's not the inquiry the n korea is do you have these rights where you recorded these rights and if you were anyway and i think your honor that that's just that's just part of the territory it may be unfair in some sense in that particular case but on a broader sense that's what the doctor grew quiet and i think it should and if we need to cut back a jurisdiction only who will do so but let's use the time to make sure that we understand and explore what the issues that are before us the distinction from the concurrent  i think will be interesting to know what the appeal of merits of the firing had been i gather the government's request on the theory that it would be controlled by the decision basically if this court reaches the merits depending on how this court rules it might affect that appeal so that there are two issues with respect to the r itself whether it is appropriate form for the agency to consider the removal decision when a separate action the retirement was reverse so mr morris and attempts to put them morrison had been afforded the opportunity to respond and didn't respond both orally and in writing to the notice of proposed rule that was based on his loss of security clearance the status quo ante relief as defined court does not mean that wiping away more than the infirm decision it means going back to the status of things before the improper action which it was the involuntary  issued a notice of this rule we never did any anything about what we would have and we would have removed him and this course and look you can't know what would have happened in that case maybe there would have been the same problem with the drug test in that third drug test as the fact that you can assume there would have been a process that ended by a certain time and would have come out a certain way here in this case is like pauline in which there was a notice  security clearance that requires that there be internal going back to cuba process and a hearing and i couldn't find that anywhere is in the mood to it was sent to us your honor first of fax on the third of april another package on a fifth of april and another facts are after that the memos that are on page one fifteen and one sixteen up explain what happened with the decision which is that mr morris and supervisor called him into the office that i'm about to issue triggered the finding of involuntary ness with respect to the retirement was a due process violation as opposed to a violation of a board made perhaps even  governing how people must be apprised of their rights at the point in which they make a decision to retire i standing here do not have an a position on that because the issue of whether this was an involuntary retirement an on appeal here no but the issue of whether there is a due process violation and what flows from that is on appeal and mr cator strongly urging that any such departure from the board directed if we want to call it that would be permissible you're not arguing i take it that if they have had the capacity to remove him but had never gone through the problem the process of issuing a proposed ok but you're saying that the difference between that case and this case is that the signed letter which just the only thing missing is the handing it to him that's that's right your honor and this case is between you know sink and baldwin both of which the m s p said the agency can consider the status of that proposal moved and in sync there was a proposal and a removal but no final decision i think that's a little bit to the agency and they said well never mind that we we could have separated you and such a date therefore you don't even get two weeks notice that this is what the fall don't do it and they don't do it because he says i want to retire but then when that for a lesser way they say well we could have done it therefore it was done as of such such date that's when you well there are as i understand it some cases at least maybe not this one but some cases in which removal would indeed influence your entitlement to pension rights is that is that correct  certainly i mean for years i keep hearing people retire because they want to preserve their pension rights so it's very complicated and as time has gone on to become more complicated with different mutations right retirement with relation is whether there is really is a risk maybe not in this case but in many cases a risk to the employee of forcing the employers hand to actually remove him as opposed to taking the retirement in lieu of being removed and there is such a risk is there not there are there are sometimes i mean there are consequences to resigning rather than being terminated one of which is you don't have to say to the next employer that i w that really i mean it doesn't work that way anymore because it's if you're talking about federal employment they will ask were you ever removed for a did you ever leave a job federal adler so yes but i mean i would rather go into that it just strikes me that that potentially the rule that you're asking for actually hurts employees in some respects more than helping them because in many instances the  response to a decision that you know you get back pay even if you are prepared to issue an order from movable and instead took the cash retirement the the agency's response is going to say no longer time if you're  suspension process means we're looking into see whether we should revoke your clearance so this suspension has clearance was suspended there then they did an indefinite suspension saying you no longer have your clearance so we're going to indefinitely suspended this court said but you didn't give him the proper procedure the proper due process under seventy five thirteen so we're going to review we're going to reverse that we're going to order that you'll be provided back that we're going to return you to your position even though we had no clearance so we're going to return to that position and give you back pay until such time as they give you adequate constitutional was having done that having made the decision that after the internal hearings required by going to their cases that the clearance because of the loss of clearance he would be separated and violation a rose by this informing him about the consequences of his retirement basically telling him that in order for you to preserve your retirement you have to resign to retire and that if you force us to fire you you will for it but now agencies go back and say given the reasons consider his reasons and if you would have made the same decision then even though you've shown the due process violation do nothing supreme court's decisions going back over one hundred fifty years mandate that due process be protected that protection in the words of this court requires that the slate be wiped clean that he be reinstated with back until such time as he's provided adequate constitutionally correct process well but with respect to the adequate and constitutionally protected process it seems to me that he got all that the first time around the only thing that was missing was the piece of paper having been handed to him by you wouldn't argue with you that if he got all of his rights to notice  hearing a right to be heard orally and in writing and that and hate the situation was made that the failure to actually handing the piece of paper they tell him you're going to be fired you are fired they just don't have  problem is that the due process problem was not i know i understand but but now you know that you're focusing on whether he's entitled to go back and have his due process cured the only curative step would be handing in the of due process and what this court in the us there's no precedent in this court that says you can have different remedies for different kinds of due process violation in fact stone says exactly the opposite stone says exactly the opposite and there's no you know the supreme court cases on due process their property seizures their custody cases there's judgment execution it's all the same if there is a due process violation the judgment is void it is for it for all purposes and cannot be relied upon and that's exactly what we have here is a judgment that is being relied upon is he is found himself he's entitled the status quo ante he's found himself in the status quo post he's exactly where he would have been and the question the question arises well he can't be better off who's better off in the situation mr morrison who for what  five years now has been battling this has been one has vindicated his rights and it's been told well they can just pretend that they did it right or the government who's violated this man's constitutional rights a question of jurisdiction so that the question is is the question that we present here in this case and the reason the are going to be some back pay and yes if so how much so exactly and the board has said you can play this reconstruction game and that in ascertaining what the status quo ante and we say no you cannot and we're coming here to this court now to say not that we disagree with your calculation to back that but that you cannot go down that path you cannot play the game of reconstruction and say what you would have done if you hadn't messed it up in affecting this man