that argument if if if it please the court i'd like to start with the fourth amendment argument because i think it's a narrower argument and in some respects it's it's a  it's never had a case involving the question of whether an individual is in a testing designated position in fact the board has never as far as i can tell address the issue of whether someone is in a testing designated position i'm not aware of any court this address that the reason that that issue doesn't arise is because it's very simple you're either designated for drug testing or you're not well what about the fact that he had a five pre employment from test requirement and that's fine and that's a completely different section of the drug testing policy and it is it is it is not this search procedure will not be a surprise it was a surprise to mr hanson citing rob route the fine route of the supreme court's case the court further and holder said random drug tests are permitted for certain employees provided that the employees had general notice that they are subject to the testing inquiry so i think it flows directly from from this court's decision in houlton but even beyond that in perfectly fine for him to be subject to random drug testing and the only thing he was really contesting was his words that used marijuana knowingly he says that i'm i know that i'm bound by what doesn't say that he doesn't raise with amendment problem with respect to the fact tasking for his position i don't think it would be reasonable to expect him to raise a fourth amendment issue at that time as you saw our senior he'd worked there for eight years he had never before been tested he'd never given the documentation is assigned to say i am in a testing designated position he was never given the opportunity to appeal which is part of the procedures he was never given any of that so far as he knew ok i got a drug test i'm supposed to be drug tested but he's not a lawyer you know  he's not required to know what his fourth amendment rights are the government is the government is and it m s p be and this court cannot sustain a removal of this taking a derogation of his fourth amendment rights so i don't think you can put waiver on mr hanson i don't think that's reasonable at all the question is was it reasonable at the time that he was subjected to this test for him to see to have known that he was subject to random drug testing and  affidavit that a j relied upon says he has privileged access privilege access what and there are some definition of that that doesn't mean that he has access to secure information information that you would need a security clearance  access it would be a crime for him to access information to be allowed to access information if he didn't have a security clearance and the the databases that are are referenced in the government's lips than the ages decision the government says here's the two databases these are law enforcement databases the affidavit that the a j relies on does not identify these eight databases does not say you have privileged access to data it out it out including these databases because it doesn't it would have been almost if we thought there was an issue we remain for them to consider whether or not he was clearly within the designated other my problem with that is we struggle we did everything we could in this case to get the government to identify what's the basis for the designation we asked discovered we filed a motion to compel they filed their brief we said it's not in here they filed something else it still wasn't in there the government has never argue that he's designated his designation flows from what the a j found the first time that ever arose was in the ages decision and now the government wants to say we've we've scoured the records we've turned over every rock and now we found this e mail wait a minute you want us to turn over every rock where's the pool there is a pool it is a list of every employee who is subject to drug testing it is maintained as required to be maintained where is that document if the government was going to turn over every stone and it wanted to show that mr hanson was a testing designated position designated it would have delivered this pool it was it here his his name in that pool government never did that it didn't do it below and it didn't do it and it's brief in this court and the reason it didn't i think the only inference that can be drawn is the reason it didn't is because he was not designated remember he didn't get the phone call said mr hanson show up for drug testing that's not how this happened he was sitting in his supervisor's office when the supervisor got the call from the drug coordinator and said show me employee a and b and tell them that they need to show up for drug testing and the supervisor said they're not here today they're out in the field and the guy said well give me two more and so he said jeff go do drug testing and jeff that he was never designated it was a fluke and it was improper because he was not on that list there are still time and time and time again there are procedures in place at the agency to protect people to ensure that they are properly included in this list including an opportunity to appeal and again as an wiley this court dealt with the issue of  reasonable suspicion testing and the question was i think a prison guard or something and somebody made an honest tip or whatever it was and this court said you have to look at the knowledge of the person at the time at the time that the testing was made well in the context of mr hanssen some reasonable expectation of privacy you have to look at what it was at the time and at the time he didn't know about this affidavit and you know parsing of the of these documents what he knew was he was never given any of these these documents he never signed as he was required to do an acknowledgment that he was subject to drug testing he had nothing his position description that identified his position as being subject to drug testing that's what was known at the time and under this court's decision to hold which as you know you can't be a surprise it was a surprise and because it was a surprise it was an awful and so do you need to remain no no the government had every opportunity every opportunity we asked for this in this governor we filed a motion to compel it please the court the argument was made that it was a surprise that mr hanson was subject to random drug testing he did not express surprise however in the first four  story before the agency and then before the board but when you're talking about someone who is not represented by counsel you're talking about a constitutional question there are a lot more liberal with respect to whether or not based on several things your honor based on the statement in the drug free policy which you're on a reference to based upon sworn evidence establishing his job duties which squarely fall within the parameters of that provision of the drug testing policy but if that weren't enough there was additional sworn evidence that showed mr hansen's i t specialist position specifically appears on the agency's complete list of covered positions that are subject to random drug testing that appears in the appendix on pages one twenty eight and one fifty two the declaration of mr spann spies vana spidey states in paragraph four that mr hanssen was subject to random drug testing under the agency's program sure so that there's a notice question that has been presented to the court at this level however there wasn't a fourth amendment notice argument made before the board when mr a notice on ok so what the appellant is requesting here is that the court make a fact finding in the first instance on a matter that was not presented either in an affirmative defense or in an argument before the board and they not only don't know that not only are they asking for fact finding in the first instance on the fourth amendment issue but they don't want a rematch and to get to the truth of the matter because mr hanssen from the outset of his employment received a clear and unambiguous notice in the drug test a fact sheet which is because of the time in your honor it was not an issue in the proceedings before the board there was no affirmative defense based on the fourth amendment asserted at the board under seventy seven no one seemed to say so this issue an affirmative defense based on the fourth amendment was never the subject of discovery and fact finding by the board it was only until the opening brief in this case asserted a lack of notice that the agency went back and it wasn't something that was easy to find your honor when they specifically look for it in response to the specific argument that was made before you they did find it and i have so for me there is no other way to read this your honor than that mr hanssen was notified you have been tentatively selected for a testing designated position and are subject to post employment drought random drug testing so they don't want the riemann and to get to the truth of whether there was notice or not they are asking for your honour's to make factual findings in the first instance on an incomplete record we this is a massive agency and they do not they did they do it by position that's why it's a testing designated position not a testing designated employee the administrative judge found it was quote unquote clear that mr hansen's job duties married up to the provisions in the drug test and that drug free workplace policy which provided that employees with sensitive access to automated systems are subject to random drug testing and has  drug testing under four there are they going to employees who have access to these automated commercial systems tax and a which is the letter the off job offer letter to mr hans on one seventy seven next to drug drug test please refer to the enclosed fact sheet for documents you should read prior to the test that's the agency's notice mr hansen's fourth amendment arguments are without merit and lest the court have any doubt we would be pleased for remand for further factual developments so that mr hanson can assert the affirmative defense there could be proper discovery and fact finding and ultimately we respectfully submit that they remain and would be futile for mr hanssen but if that's what he wants  years roughly and would the other two people that were originally supposed to be the ones that were sent to drug testing did they do the exact same job as he confronted they do something else i don't think we have the answer to that in the record your honor those names come from a drug testing coordinator and when somebody is not present on the day that they're supposed to have a random drug that's the drug testing coordinator selects a new name ok i think thank supervisors to serve in a highly sensitive position at a law enforcement agency because of the poor the board properly allocated the burdens of proof and made reasonable credibility determinations in so if i may write it let me start with the trust so i hear that every time and i'm sure you did too just very quickly he was tested in april and proposed in april he was removed in september for six months believe that his law enforcement job was pending and bring drug free yes he understood the gravity of what he knew what he was up against he tested positive for drugs and even though he wasn't in the testing designated position you know he had no idea but addressed it but we said that the government part of their obligation are there to part of their burden to prove this case is to prove that he's in a testing designated position they didn't prove they didn't prove  they they didn't prove it and kept searching please give us information tell us where these designations are most of that about where's the designation they wouldn't come up with a find they didn't finally come up with until their closing brief and even then the a j didn't yes are the one twenty three she says he has privileged access she could have said and including access to these databases she didn't say that and the reason she didn't say is because he didn't have access to it he didn't have a security clearance those are to this issue about whether they maintain a list of individuals they certainly do their policy set individuals not positions individuals are placed into a pool of employees who occupy testing designated position designated might you not designate a bill that individual specific notices individual specific notices are set to vote as employees informing them of their inclusion in the random drug testing program never got that notice notification of selection the employee is notified that he's been selected for a drug test and i think that form is on page eighty two of the appendix this is the form that mr hanssen should have received if  he was actually designated to be tests that he never received it because he wasn't designated and no there is no reason to remain in this to give the government another chance we dispute that withstanding the government's assertion of what that document says