i have knowledge of her credentials and i'm satisfied she possesses the necessary qualifications that's what i'm supposed to say but i will say in addition of interest in my law clerks and she's been when we step back in the other room for many dissenting expresses pleas to grant the motion and that's all we welcome you to the bar we look forward to seeing you at the lectern in the near future knowingly consent to the loss of career tenure and appeal rights and accepting another appointment with the agency and it was deemed therefore not to accepted the new appointment and to have retained the appeal and career tenure associated with his former appointment the board issued an order to the agency directing the agency to cancel the removal action that had been done with respect to mr edwards and to restore him to his position effective june judge continue to rely on that statement of understanding but that issue was ruled on and rejected by the board in its decision in that language appears paragraph nine at their decision the  board states that stating it cannot constitute notice of the appellant's change of tenure for purposes of consenting to the loss of his career ten year and appeal rights because it is undisputed that it is not read or signed by the appellant prior to his substantial evidence there was a determination that substantial evidence supported the conclusion that this was a term a point i mean for you to succeed here you have to show us all warry substantial evidence doesn't support that where are both the case law in the determination by the board the administrative judge and his consideration of the issue is bound to follow the decision of the merits as to protection for the marriage system protection board made a determination on that issue and they determined that in order for mr edwards to have accepted a term appointment he would have had consent to the loss of his career tenure that's what the park case holes that in order for an employee to to to to change a in a position from a one with career teenager to one without  or the agency has to have no this knowledge and there has to be a voluntary waiver of that right where you were seeking return to his position as a corrections officer no sort of career tenured position the week offer from the agency for a promotion transfer the agency now acknowledges that mr edwards in freon to duty was through the promotion transfer s f fifty two document when he entered on the duty and that that offer and accepted it and entered on to duty at the agency and subsequently did what they now characterize initially the agency up until two thousand  misrepresent not notified that there was a corrective action that was being done and that is time to read to the to what the law requires and set forth under the presently the case anytime there is a corrective action done really agency is making a change that would require adverse action for seasonal riots there has to be notice and due process given to the employee that was not done in this case just to work when you appeared before us with my recollection is correct three years ago on this same case you said then that what you needed was an opportunity to appear before the board before the a j and have a he because your client had not been given an actual hearing before the board at that time and you said the problem was that there were all these conflicting documents in the record that  was sure what they meant and we agreed with you in fact i think if i remember right judge lane and i were both on the panel there was a different third judge and so we remained that gave you an opportunity for here  didn't want that here what happened to that the administrative judge so narrowly limited the scope of the issues in that case basically limited it to a single issue the issue being whether or not mr edwards had accepted a term appointment since we had in the interim after we appeared here and in two thousand and three there was additional discovery that was done in that time the agency admitted that they had not that they had not a minute it revoked or cancelled the promotion transfer in may two thousand and four after they had made that mission they change that response or made two thousand four admissions at the close of the rally basically then that day that they made a correction actually they did issue the exit fifty two they made a correction to it that correction effected a conversion of mr position from career commissioner of the term actually change the position number on his personnel records he was in one position and was changed to another position and they explain all that in their depositions in the record before file was being it was generated after mr edwards was terminated by the agency so the the litigation issue was in the air but we had determined that that that that with the issues as they were so limited and the discovery that was that had been assembled that it was not necessary and wouldn't be that would be futile basically for us to proceed to the to the administrative judge to get a hearing and  and that was confirmed we believe by the ruling that we got because the the ruling that we got the administrative judge again relies on the statement of understanding that had been rejected by the board in its august  decision and that's that was the decision we were seeking to inform if you had to put your finger on one single thing that the board role that we need to correct in our what would it would be the reliance on the the the s f fifty and the real science on the statement of understanding which were determined we believe to not have in the board's decision of august eighth the language of that the the issue is did mr edwards consent to the last of his career tenure the board in its august eighth two thousand decision determined that he did not in order for him to accept a terms issued with the agency he would have had to have notice he would have had to have he would have had to in writing voluntarily waived his career to near an appeal right there is no document that the agency has produced other than that statement of understanding which was signed by mr edwards after he reported for duty under threat of terminations he was ordered to fire that document or be terminated th sir the agency the ac didn't have positions and in fact the the mr evans that was in september of ninety nine yet when the when the discussion then about the position that was alternately offered to mr edwards that heard six months later they came back to and and advised him they would put him in a permanent position the s f fifty two was generated mr abbott was told he would need they would need to be no break in service he would need to resign his position from the bureau of prisons that's what he he rejected it the agency came back and offered him a permanent position the there is nothing in the record that that the that the agency can produce that would demonstrate  received a career conditional appointment as a difficult patient officer with the service now in the an act of david that was submitted at the time of the record they claimed that was an error but it is consistent with m edwards testimony it's consistent with the documents that are in the record there is the document that would be required for mr edwards to have given up his career tenure is absent from the record w honor the critical issue is whether he accepted a term appointment as the board talent this is the first time that mr edwards has challenged the issue as defined by the board and remained and that issue is certainly consistent with this court's recent decision in two thousand and three and the tally of the circumstances suggest wrongly as the board that mr edwards was aware that he was accepting a term position he applied for the term position the position announcement said in two different places on the cover that it was a term position not to exceed thirteen months he applied for it and he mentioned that announcement number on his application specifically the same exact this term position that he didn't really want to term position and he asserts his declaration that there were fun cars that were made between him and i and s official that's unnamed as of this date and there's no date by anybody on the i am is to support that statement mr edwards himself has no documentation of that statement other than his self serving declaration once the case is in litigation moreover the agency cannot just chang appointment or an announcement from return to a career conditional appointment there is no authority for that and there are three declarations in the record that the government submitted to the board that explained that it is not within the authority of an agency individual to simply change the nature of an appointment so that argument does not succeed moreover mr average less than two weeks after he began working on may ninth one thousand nine hundred nine signed the statement of understanding it was within a short that is she was not addressed by the board and so he signed the statement and he even crossed out there in certain things at the end of the statement so yes he did have a voice in signing that statement and if you didn't want to turn position which is what the statement was all about and he didn't have to sign it he could have said no i'm going to hold out for her a conditional appointment down the road i'm going back to my former position at b o p he had alternatives yet to sign the statement opie and his career conditional point meant that if he didn't leave and accept the terms position that his provisionally rights and appeal rights would be limited and that didn't happen and that is the error and this came but that area was corrected by reinstating him to his child position giving him back pay for the full amount of that time position and then it expired nationally on june eighth of two thousand but i don't see how putting him in the position that he said he didn't want would correct the error of not having told him in advance that if he took that position that was a turning point i'm puzzled as to how that correct with the failure of the government to have told him before he left the bill press's that he was about to jump off a cliff well it's hardly hardly a good answer to say to somebody jumped off a cliff that well we'll let you go back up and do it again germination date that was found in error so it wasn't as if he was terminated before he ever knew that he had limited appeal rights he was terminated after he signed that statement of understanding accepting his limited appeal rights so to the extent there was error the board was conservative and having the government give him back pay and reinstatement took are you arguing that he did not knowingly consent to the loss of his appeal rights but he did knowingly consent to the loss of his career in your at the time he began working as a district adjudication officer may ninth the board found in its two thousand decision that he was not aware that he was giving up his current career commission procedural appeal rights however the board it is and that's why the court held that because the removal was improper and that it didn't give him something that a current career conditional person would have gotten which is thirty days notice before  tenure has to be part and parcel of a vacancy announcement or a position part of a definition of an open position and here it wasn't so yes he did lose his procedural appeal write a procedural notice for nomination and that's why the board held that the removal was improper and that he must be reinstated to his position that he had accepted so he received the benefit of the bargain in the sense that he got the full critical question and the board held he was in a time position that went up on appeal to this court this court house looking at the documents we can't tell what he had selectively mandate to see what he had what status quo he was in when he was improperly removed but if you if you did not knowingly consent to the loss of his career tenure position then isn't he entitled to retain a career tenured position or to be returned to that career tenured position that's not the position with the ins that's the position with the bureau of prisons yes your honor i know that but he did co on may twenty first to the last of his career conditional appointment so he ultimately did consent to the law that position it was within two weeks of beginning work on may ninth now it wasn't when it perhaps should have been which was before he left the p but he did consent to the law as it he apply for a vacancy announcement that evidence in two places that it was a time position he signed the statement of understanding he began working in that position before we get too far lost in retrying this case i take it the government's position is that given our limited standard of review on the question of whether he relates wished his position knowingly and whether he knowingly took on a term appointment i suppose your answer would be those are specific factual determinations which we can overturn only if there is no substantial evidence in the record to support them with the government's position here under yes this court has held that whether kirby without reference to the board your honor i don't believe so because mr edwards did not challenge the issue as the work to find it which is did he accept a term position so that issue is not  court did not define it in so many words but this court looked at the documents and said these documents go this way evidencing his maybe not accepting the term position these other documents go the other way evidencing that perhaps he did accept inter n we don't understand the record so in essence that's how we read the court's three man decision as asking what did he accept and that's how the board interpreted this as well the agency to position seeks to limit the august eighth two thousand to decision to a finding that mr edwards only gave his adverse action procedural rights the august eighth two thousand decision the board however cannot be so limited it was broader the board specifically fand that mr edwards did not consent to the loss of his career tenure or his appeal rights there or he did not accept the new appointment with the agency and has to be restored to its former status which as i said is as a career conditional employee with career tenure that's the clear language of the words were it paragraph ten with respect to are you talking about the twenty zero two board order this is the the you know the  order by returning him to a position in my mistaken about that's the decision it was vacated by this court in two thousand and three but that was the board position that that that was the administrative because he states there i signed under protest this is on page fifty five i signed under protest he's referring to a supervisor came to him and explained that he must sign this or they will terminate me i and i signed under those those cars those changes were made not by mr edwards but by the agency because they were inapplicable to mr edward situation mr everett made no changes to the state of understanding and let me quickly very quickly let me quickly just just with respect to exhibit five which is the agency's explanation of how mr edwards arrived on the duty they do point out that mr edwards that the agency requested and got approval to fill a temporary district adjudication officer position referring to the s a fifty two and then it was and it was and that was a career conditional promotion transfer miss clark then made  correction it would have been possible for the agency if in fact a mistake had occurred to correct that mistake and restore mr edwards to his former position with the bureau of prisons they did not do that instead they process it conversion the term changed his job from career conditional to term he didn't receive notice he didn't have an opportunity to respond to that he didn't consent to it