for the benefit in solomon of you and other council today the lighting system well the show until you begin to get into your rebuttal time at which point it will turn yellow you reserve five minutes really a very simple case mr erickson was employed with the postal service he left he served on active military duty and during that time period he was contacted by the postal service and told to make a decision about he actually did reapply and during that period mr erickson indicated that he had contacted the agency and he had been in contact with his union to try and seek reemployment but the issue case is really two for the first is that what evidence was there that he actually contracted the agency with that he did he met in the evidence of a call a memo can creation and e mail communication as indicated in the administrate of judge's initial decision he steve candidly in deposition that he had contacted the agency so by a deposition which was introduced into record at the board level mr erickson requested reemployment and did that testimony make clear that when you contacted the agency he did require three employment the deposition made clear that only that he had contacted and expressed a concern that he was removed from point and didn't think it was justified because he was covered under  so he couldn't go beyond that in the area to actually be reemployed it was the petitioners position that he didn't have a position to be reemployed to he was terminated in two thousand therefore it seemed as though it would have been for naught to request re roughly seven exemptions and a significant portion of his time was covered under that those exemptions under the cap moreover the time period that he served on military duty after he was removed was improperly considered one when the board turned whether or not the agency had violated usera by virtue of the fact that he simply remained on military duty to mitigate the damages that he had incurred after the postal service terminated his employment i think the is your view as to the application of the five year limit which i think appears in forty three twelve with respect to forty three eleven and let me explain what i mean by that do you believe that know someone is gone for five years that forty three eleven i understand that that's not the case in this instance at least as of two thousand but if someone were gone for five years to civilian employment then front and purposes forty three would not cover that well let's think someone who doesn't make clear whether they do intend or not but they simply depart for let's say six years and now do they nonetheless have rights under forty three eleven it wasn't clear to me from your brief whether you were making an argument that forty three eleven would apply even if forty three twelve did not if forty three eleven would apply even if forty three twelve would not because if the individual for example mr erickson was removed from employment prior to the expiration of the six years there is a time period that he was still covered by usera and could have  requested his position while we wait you've lost me there my hypothetical is i'm not talking about mr eriksson's case now but just a hypothetical is that the individual is gone for a long enough five years not counting exceptions he's gone for long enough that he wouldn't have reemployment rights under forty three twelve ok all right does he nonetheless have anti discrimination rights under forty three eleven or disappointed three eleven right and discrimination rights are the coterminous with the forty three twelve reemployment rights in time forty three eleven is contingent on forty three twelve by virtue of the fact that you say only applies to non career military employees so if someone exceeds the five year cap then or do you believe they're not covered under sara by virtue of the fact that they're not going to be a civilian employee only had complied with the act however in the case and i realize that your had and i think you've answered my question with the case of mr erickson though i regard this at the exceptions well he he was in inclusive for three twelve the exceptions he was covered by ice or at the time of his removal the agency submitted a bio letter to him indicating that he had exceeded the five year cap and he did and they did that erroneous l so after being informed he was terminated from employment he remained on military service he did that to mitigate his damages so there was there was no position for him to ever reapply to that doesn't obviate the fact that the postal service still violated forty three eleven while mr erickson was still covered by the act and he was harmed by that he has to he's been prevented from obtaining alternative employment with other federal agencies by virtue of the prior termination as reflected on it as a fifty he has been precluded from readily obtaining alternative employment positions in the private sector so the simple act of removing him while he was covered  sarah has caused significant harm to him so whether or not he was entitled to later reemployment does not prevent this court from finding that the postal service by filing you serious in the first instance in two thousand when they fired him was going to be returning because he had had a conversation with a human resources official is reflected in the bit in the respondents brief and in the response appendix and they were able to identify when his orders expired which were in september two thousand  indicated in the intention of staying on military duty until that water expired so this isn't a case where as in would mean mr erickson was on a military service for an extended period of time in the just war not aware of if or when he would ever return or no it's good to be on the record and i know the portion of the record you're hurrying to but i did not understand that question the record to have constituted representation that he would come back in two thousand and one but rather that he was already signed up through two thousand and one without any representation and i could see in the record you c correct me if i'm wrong in this that he indeed was coming back after that commitment terminated is there something in the record to that effect it's even if that is not reflected on ambiguously in the record well he's in or not it appears that he indicated that he would be on military duty until his military orders expired and there's nothing in the record that says i'm going to indicated to the human resources official that he appreciated the way the military treated him better than the postal service was contacting him on military service and telling him to make a decision to come back to you is being ordered on active military duty or lose his job so to the extent that he had to on ambiguously indicate a date certain that he had to return for military service to be protected by sarah the petitioner would be in the oppose that you because you sarah unless he is continuously on active military duty rather than in aggregate basically he was keen to stay there was under the assumption that he had to be gone for five years not in totality but consecutively so what impact could time basis it wasn't always for it was he unlike woodman who was on active military duty for fourteen years full time continuously that is not the case with mr erickson it may have been part time wouldn't still  will reserve your full rebuttal time but let me ask you to enter further questioning if i could go back in your view if and again i'm troubled by the relationship between forty three eleven and forty three twelve so that's what this question is directed at in your view if someone you're doing is a limited period of time in which someone can request reemployment discrimination under forty three eleven but does not request reemployment during the period the ninety day period i take it you would remedy that would be available if we're not primed for example there's a forty three eleven violation not a forty three twelve thirty three eleven violation would essentially if you if this court were trying to find a violation mr erickson would step back into the position he would have been but for the agency's violation of forty three eleven or so and get back to me all the way up to today no i think it would be absence as misconduct and usera was expressly an active for the sole purpose of preventing that type of situation so mr erickson has been harmed by virtue of their classification of his pull his absence while covered in the act as misconduct and now ha i think you said that he would get relief up to the time of his removal in two thousand this court can file a violation in two thousand right would not necessarily indicate he's entitled to back pay but still find that the postal service should not have classified his should not have actually removed him so the court could order for example that the s s fifty be adjusted ok can't come back so he would have presumably been able to come back at any point thereafter he would have been able to come back at some point in that difficulty mr eriksson's position is that he remain an active military duty until two thousand and five with as he simply did not have a position to come back to was already on active military duty he was a teen in a paycheck from the military so he continued to get that paycheck he didn't come back early to occupy status of  but for the agency's determination of him it may very well be the timely application after he returned from military service that sounds like you're saying that he's prejudiced all the way through at least two thousand and five and perhaps beyond same position he occupied prior to the time of his removal or his departure from military service he would step back onto the career escalator principle as it is articulated by the supreme court fish told in the same level that he but what indicates to you if anything that the full board embrace that rationale which was the rationale as i read the initial decision but does not seem to appear in the full firm as modified with the reasons set forth below do not include the abandonment russian now or do you think that they do we think that the factual findings that were made by personal course th it's the case that the full board's opinion simply washes the id out then the full board hasn't made factual findings necessary impertinent has it to be abandoned aargh right but not acceptable and would be if the know if this the full board made factual findings that were there were conflicting with and not consistent with the administrative judge's factual finding look what about it different way i looked at it in terms of no it's not covered by there at all because he's abandoned the civilian career there's nothing inconsistent with both of those standing together on the s administration judges conclusions certainly also supported by the fact that he never asked to be reemployed within ninety days and also arguably by two thousand five hundred had exceeded the five year limit on reemployment rights and those are certainly yes and to the extent that there were allegations that he requested reemployment or made inquiries or guardian reemployment prior to that date the submitted five affidavits of various human resources personnel who all test requests alleging that the postal service to fail to reemploy them does not constitute an application for employment it's simply not the same thing i mean you have to confess troubled by the discrimination rationale applied by the board the board said well this wasn't discrimination because of military service are discrimination because somebody  to go join the tennis circuit leave your job presumably you'd be fired in pretty short order for not showing up to work but i thought the whole purpose of the a sara including the anti discrimination provision is to ensure that people can leave i mean leaving is exactly what you do to do military service how can it be the case that it's not discrimination under forty three eleven as long as you use their absence as the basis for finding lack of discrimination sounds strange rated to two points first simply because he left on military service so congress could not have intended that an employer be required to leave that position and and not be able to fill that position with a new employee what during the absence now i want to be very very clear that the employee is absolutely entitled to the reemployment rights under forty three point two once he makes a pplication for employment he's absolutely right and you should be back so the position but then they got open position when it comes back right but what would have what's happening here is as the postal service he had just been placed since all the benefits of employment that he has been nor at the time he seeks for employment so even if the removal at the separation two thousand had been seen and we think that it's not but even if this court were to find that it was incorrect the only benefit that mr erickson would obtain would be the right of employment which he already had by virtue forty three twelve there is no end to address this court's concern about the remedy even if th court were to find that the separation two thousand was improper the result would be that he would have been deemed to have been on a leave of absence or furlough he still by forty three one two would have been required to make an application with the ninety days  situation where that the syllabi is closed or if it would be impossible or a hardship for the employer to reemploy him there may be other situations but the postal service would have been obligated to find him a position w assuming that that that the application met you know was to somebody from in the postal service who had the ability to do something about it like a human resources official or a supervisor to focus in on the rationale employed by the board and see the extent to which you embrace that rationale as applied more generally because these i read the board and took a pretty broad ruling that removal absence is not discrimination because of military service to the department of justice stand behind that proposition as stated that would be extraordinarily bright your honor and i don't i don't think that's  years but had said but had expressed their intention to return but again that wouldn't mean necessarily that the employer is required to maintain them in a certain employment status fundamentally flawed legal theory of military discrimination and here's my concern if if this is a correct proposition it seems to me we've reduced forty three eleven two cases in which the agency says you know what we can't stand those military guys they're just you know people coming back in the military are anathema anybody that comes back from the military whether they're gone a week or whether they're gone five years of weather find a way to get rid of  removal of the possible remedy for that is not necessarily monetary it's not necessarily backpay it could be in terms of pension credits could be in terms of seniority the issue of forty three twelve the guard to reemployment i assertion that that aspect of the record is someone ambiguous and it would be to petitioners recommendation to remand the case for further development on the record for example the respondents brief at appendix a one over four and a one zero five seem to indicate that mr erickson did indeed submit a grievance that he did indeed complain about the fact that he was removed from employment and it was not at all clear to him that he had reemployment rights after i'd been termin back in the postal service he's exactly the type of petitioner that congress and a vision and one in acting usera any fine points with regard to that time calculations cannot possibly the fact that he was discriminated against in two thousand because he was removed by virtue of his military service not absence because absence is necessitated by the military service so the full bore suspicion is on ambiguously incorrect was discussing with us as to whether the board's opinion should be read as incorporating the initial decision rationale regarding abandonment the full board were mixing the two claims the forty three eleven the forty three twelve claims and for that reason the full board decision reads in a manner that would create precedent that permits agencies to remove appellant it's by virtue of is whether that abandonment issue is before us in the sense that the full board embraced not only the rationale that it expressed but also the rationale that it's present in the initial seizure by the minister judge it the fact that he remained on military service for an extended period of time and therefore was not covered by usera it was not clear from the full board's decision whether or not that same reasoning applied to the forty three eleven clean  a benefit employment when he was terminated from the full service and also tonight reemployment rights thank you thank you very much and all counsel you submitted