or mr commandos so at least there are two issues the petitioner sleep on this and this appeal judges the first is president of the finding made by the government they want you to believe that my client was found selected for two positions the breadth of the finding was much broader and after climbing out of consideration for a third position if they never responded to that application he applied for a position that was not law enforcement he testified relating to that position and they never there's been no communication not that they didn't tell him he was qualified not qualified they didn't respond to it at all and then he subsequently reapply for the same positions that issue in this case in the us the other issues a decision made reference to the tend to devolve for some third position they're referring again to the same positions at issue in this case the border patrol agent and the customs and border patrol officer he applied for three positions developers that were drawn yes that's the subject of this appeal the board is specifically referring to the same order patrol agent customs border patrol officer they re advertise these every year so if you wish to you can reapply over and over again for the same positions which my client took advantage of that the problem is the polygraph they find a three year without explanation they say it's what you fail the polygraph o he did but that processing at the time we had this hearing had not concluded so and what's the status of that we they never contacted him at our understanding is that because the polygraph was still less than three years old he was not so after receiving the contingent offer there's been radio silence you have correct ok correct why isn't this simply a case of non respect to positions they say the opposite of that not only in the letter which is at issue at page twenty one but in brown's declaration that pages seventy one and seventy two he refers to it as a suitability determination very and their letter to him which the board seems to have an amnesia because in their remained order if you read their remained order you would believe that they at least then inferred at that point that my client had made a case because they refer to be fair to the board but that's not to suggest they had amnesia i think the point he heard was trying to make was the letter was internally inconsistent it said things that suggested that this was a broad suitability determination by c b p and yet there were other statements that maybe made it look like it was a specific cancellation of ineligible or non selection for this particular position reading of those internally inconsistent documents which channel towards the conclusion that this was just a non selection for the border patrol agent position and for the c if that is true but the judges reading we don't believe a fair reading if you look at the testimony of these individuals specifically when the judge asked a question of page seven thirty five you'll see that the judge asks ok so let's say you have done and entire suitability adjudication this is the memo you would send for that answer right we would send this memo that memo is a suitability finding they can't they're trying to say that it's regulation here when one division in the personnel security division says there's a suitability problem here and then and kicks that determination over to the human resources and the human resources department the actual department that makes the final choice of whether to go through with hiring someone and so that that seemed to be the way i was reading the various witness testimony that perhaps the personnel security division is making a request that you should find this person unsuitable but ultimately it's up to a chart of make the final conclusion on whether to withdraw the contingent offer from this particular position but we don't agree with that position we don't believe that h r was making the decision we believe the decision was made by the personnel security division in fact mr staples testified as he once he failed the polygraph it's a fait accompli you failed the polygraph you are not eligible you can use the word suitability you can use the word disqualified you can place any label you want on it but at that point time once you failed a polygraph they found very protection agency i think they're both law enforcement positions but there that was not at issue below who deserve the difference not other than how they define the law enforcement specific duties no mock to our knowledge no but my client was a border patrol agent and he served and was promoted twice in that position and the record shows he had passed a background check and suitability to at least initial determination previously  what is your understanding of what an unseen suitability terminations does it basically to far and you can see from hiring and indeed individual for any and all positions from personal experience here is not so much in the record because i am a former jag and government counsel and our position is that once the personnel security office goes through the criteria and in the polygraph exam is a question and answer session as the record indicates they average almost six hours five hours and fifty three minutes during that questioning they're trying to determine is this person suitable or they trustworthy are they honest and that's fine and that they made that my client was an honest we're simply saying there should be procedural due process and let me analogous there and let me let me get my get more tighter with my question ok we're trying to figure out whether it in non selection for a particular position i understand what that means that means for this particular position you've been blocked from getting hired for and now a primary stand ok which the scale and scope of unsuitability determination it is it completely blocking an individual from any position that could be available for that entire agency i believe it is and i believe that's what they said and that was their intent and then they later  realizing they later realized that i don't want to broaden that explanation but their own testimony again in their own sworn statements in their own testimony the only explanation you were given is a template which there isn't much explanation to that other than to say it's a template and then to say that there was they actually testified there is another process but when i asked what is that process they could describe it because this is the process there and because they didn't follow their own regulation we would submit and i'll reserve  three months for a bottle of close in a minute and a half but we would submit you should look at these cases like you do security clearance cases we always require to someone who has a security clearance they get procedural due process this they get procedural due process to any suitability fine and let's say you have a background check and you have a criminal record you have a bankruptcy that personnel security office will say to you here's the negative derogatory information we found would you like to respond but there exempting polygraphs from that they're saying this is an reviewable we're going to question you for six hours we're going to find fifty percent of you are not qualified based on it but you don't get to respond you just must take our word for  and there's nothing no written letter we're just saying if you're going to do it with respect to everything else if they have a criminal record if they have a bankruptcy if they have a bad history you should say to them we questioned you we found you you were not fully forthright in the following area would you like to respond and they did they didn't do that and they did and my problem having practice in this area for my entire career is that it's not fun fundamentally fair to have no process in the case polygraph but we submitted it's it was a suitability but in the alternative if it's not you have sprit see join substantive process arguments that i made t of this polygraph test you're going to endure for three years yes it is own unique position he applied for let's say he wants to be assistant secretary for c b p or homeland security this polygraph different papa yes according to the record yes and so this is why i was asking about the difference of human duties and that's the use of a single result to decide different positions is are different with the law enforcement communications age of fifteen deposition and the other two yes because it's not all the communications agent wasn't a lot of horsemen position but  the board be it please the court first and foremost there's a clarification that needs to be made a suitability determination is not a suitability action there was a suitability determination here suitability action suitability determination typically in a position that being applied for that subject to investigation the investigator at the end of quickly all the information from the investigation makes a determination is this candidate suitable for employment or are they not suitable for what you should know and the answer is no it goes on to disliking official this information unsuitable so this like an official has two options they can object to the so if you're barred from employment all future employment with the with the federal agency for three years under suitability determination or you're barred from three years on for federal employment under  duties and and you know the former officer and under one determination order one polygraph he was found to be not suitable for this one were not selected either one and then same polygraph the same thing for this position seems to me that whatever he imply for within the agency for the next three years he's not going to get the job correct or be or it doesn't have does he have a real prospect you to be employed as a law enforcement communications agent their only information about that position which is basically dispatch is from mr suisse is testimony saying that he applied for that that's not on course you don't have any record of that up occasionally there's no there's not much in this record at all except for his testimony because that's not what his claims about is not a law enforcement position so the polygraph has nothing to do with that the public is not required that position again if he's not bringing a claim about that position to get back to this suitability determination there's this really there's three options because the third option is based on and suitability conclusion of an investigation there can be an objection it followed by a suitability action there are two different things and in some cases an agency has to take a suitability action if there was fraud in the examination process for example if that's the conclusion of the investigation then that at apple can we not only be found to be unsuitable but there will be unsuitable actually taken into referral the o p s that means fraud in the examination it basically means if they lied about something in their application for example there's a question about a criminal but cheated she got cheated on examination is there for archiving out by the applicant all right which isn't what happened here and just so i understand  you're saying for law enforcement officer positions the polygraph test isn't the core element and so therefore there wouldn't be some suitability determination memo from the personnel security division to h r or contingent offer to an applicant or and law enforcement officer position there and then the rape still beat that that is you may still be subject to investigation but the polygraph examination did not apply to that position and i think that's why mr sillies didn't include that in the claims and there's very little in the record about his application for that position it's come from his the position that was not the reason why and that's why the objections here were taken to the to our fortunate position she applied for because that's the part of applies directly to the the key testimony here is really from whether the other witnesses or are doing with the investigation began the determination of this candidate suitable or unsuitable but ms relator is the key witness because she's actually in a jar and her testimony is once you receive this information she processed an objection not a suitability action objection and that's in the panics at seven forty two to forty three and her testimony is undisputed so even though the petitioner raises some issues about credibility findings and whether the ministry of judgment to do that correctly there's no no other witness disputes this reuters testimony that the agency took an objection not a suitability action other evidence to corroborate action he most certainly would not have been invited to reapply because they would have found that he should be disbarred barred finally given this internal memo which i think is the crux letters that you received unsuitability action before people rights then the letter wouldn't say you have still the opportunity to review what the opportunity replying did reply it's true leach you refer back to the internal memorandum right lips and appendix twenty one twenty one that's correct so let's look at that this is actually from the system director of personal security division funding position is and that is exactly why the board i mean i think i think i may hear your answer and it is yes and that's exactly what the board remained it for here because this memo is so unclear it doesn't telling us that the word determination it should read in action or if you don't read action in and be issued ability issue with respect to the board's jurisdiction now i want to make this clear this is coming from the investigative side of the agency so they're talking about a determination with a person found suitable or unsuitable this is going to smell of this information is going to an h r person that is our person decides that there will be a suitability action and if they decide it will be  civil action they forward that on to their examiner what you happen again what happens if there's a suitability act and he's barred from employment it could be to bar for women up to three years yet but that's what's happened member of the suitability determination he's been  to persist in his record for three years isn't that i mean what what am i not seeing and that seems to me to be a bar for three years the key difference is opium regulations distinguish between an objection to the two positions because of the polygraph test that's that is correct right and not only will you shift it's going to affect any decision in more than one forum for the next three years it could actually cut but be used in that situation it is my understanding that it would not although i don't know whether the agency would consider it for that purpose or not it would depend on what the requirements were for that particular position it could also be another bar then you would never be able to get any of these positions and he wasn't technically barred but there is this polygraph test that's going to be used against him for three years and each time that he's been applying for these  each time he's getting that contingent offer withdrawn why because of the polygraph test yes i will i mean from that vantage point it looks like the exact same thing there's nothing in the record to suggest that he didn't get  final since it and if the facts can reapply for position within the c b p the result for your math background investigation and more polygraph examination will be used in future investigation for mental three years what is that killing him that he killed his he didn't get the position because of the polygraph we don't know what it means because there is no testimony elicited on it but we know what he doesn't mean it doesn't mean that he's considering the future he won't get a job because of the polygraph and i can represent  keep supplying over and over again and he ultimately isn't chosen because of a failed polygraph and so for three years this keeps happening over and over again investigations will preclude him going forward and in fact he will we know we do know that well we don't know why he was not selected for those positions based on age occasion and all these other know we don't we i can assure you sir he was given in january he applied for another b p a position in january twenty fifth two within the three years and she subsequently in july applied to the same position so that application  apply the language that is down in the record right now what's the point of applying over and over again if if there is already a design in place by the government to say no to you because of the polygraph  it there's no selecting official discussion he just gets a letter the letter they sent him didn't reference any position that said he's going to tell the polygraph there was no identification of a position either in the internal memo or the letter sent  him so i had your same questions judge and i'd drill down on this and the record i i asked and you look at seven thirty five i asked mr staples about that memo i said ok this is a template  anything i said ok this is the actual template letter for any unsuitable applicants that we actually i'm sorry i missed let me strike that start of judge henderson that asked the judge got involved because they said this is the template for  suitability determination not just a not something less than on suitability and the judge asked ok so let's say you had done an entire suitability adjudication this is the memo you would send for that witness right we would send this memo they sent him that was a suitability finding he clarified it to the judge's question he said it his original testimony he said it has sworn statement in the e o p case which is an age of seventy two and seventy three they s rule the rule used to be as you stated well they created they changed the rule so now that the exception swallows the rule you're never going to have a suitability determination if you don't find that this is what the problem is in this particular peel you're not challenging the validity of the regulation so now the next question is you know did they properly apply the regulation on the facts of this case and there is at least some argument that they can made based on some of the statements that favor their views in the documents and then the testimony by their witnesses that a of the same time the internal memo also talks about how the personnel who vision sending this along with the char for in charge processing of an objection to an eligible or for taking other action as action and and so on the facts here you know if we have to review it deferentially there is a way to just say ok this is a firm of all is it right to blur the line between unsuitability actions and cancellations of eligible as the regulation currently does i don't know but that seems like something that's not at stake in this case because what we don't have is the usual challenge to the validity of regulation itself yes a couple of thoughts is in the answer to your comment structure of the one we don't we can't challenge the regulation we don't have the authority the  a claim saying this is an unlawful regulation that's not how the board works that that is the regulation we're bound by it and i quoted it in the initial appeal now personally i don't agree with that i don't agree with what that change was in two thousand and eight i think the core should have looked at it in two thousand and eight perhaps when a case came to it and said this is overreaching but we can't challenge it we have to live with it so what i'm saying to you is and living with the regulation as written the exception has now swallowed the entire suitability five c of our seven thirty one the whole rule is gone now because the adjudications done in personnel security that there is no adjudication outside it's all been pro forma and it's just the sending of letters you need to look at the five process of what happened in the suitability office this is a new requirement we're now going to give us we're going to polygraph everyone if you fail that's a you're done and then if on balance if you look at the totality of the the the