we get started i don't want to use your time but i want to bring something to your attention polk county the court realized in reviewing the matter for this case that the appendix which we understand to be prepared right so i actually had the appendix removed from our public website after i realized that they were in there i leave it to you i will give you until monday if you would like to file a corrected version of the his social security number we'll post that on the website if you don't file a redacted version by monday i'm going to put it back up the old list the understanding that you know that it has his social security number and but i i just kind of thought that  meaning of seventy five above and i was the issue the case when we had a hearing concerned whether or not his previous employment with the pentagon police force was the same or similar do is  case law that really address this issue i saw some other cases here and like i would point out and i believe it's a benedict the a j really relies on that judge brock's he lied on that but part of the issue was it wasn't exactly the that the ice instructors that instructed these these agents down there were also pool instructors and how it works if let's say this is a little off the cuff but how it works down there is a you have all these instructors from various agencies that are down there train all the i mean they train everyone not just their own individual agency apart from training and i think you've made several really good points about that i mean this unfortunately is after an evidentiary hearing where we ha question and the other thing they relied on was some of the differences between the actual job and one of the significant ones it seems to me is having to deal with illegal immigrant right having to contend with them as a police officer as a security guard at any of those positions you don't have a continuing limitation to deal with the for the whole and we don't have to go through and figure out now what do we do with them as an ins agent it's not simply a matter of arresting them  really triggers court action here because i think the courts settle wait a second you can't just say that if it's a different agencies and different missions where you have a family federal air marshal and immigration agent just because one's mandate is to you know investigate you know foreign nationals and illegal aliens and one is to you know maintain security on airplanes they're both federal law enforcement agents agencies and i think that's that's kind of the point of us coming up there but that you know you could compare tho two and as individuals who both have obligations to not just deal with but to when appropriate detain arrest when you're not saying that that you or that in a prior position that he would have had the obligation to process the individual right what if and again to cut a trigger and piggyback what you're saying is that you know he came across for national occasion a specific and when they detain them or whatever they did with them time here the federal circuit court there's a federal employee under that no that would be ridiculous art just like i said if you know cases of my grief about where was obvious where somebody tried to tack are had a six year gap in their federal in their federal employment they couldn't do that there's obviously the requirements employee go far beyond just the you know same or similar i think the point is if you have an employee who was in federal law enforcement doing the same exact same similar type stuff agree you know if you had a boy that came on the higher spanish speakers if they had some sort of ability to show their proficiency in spanish then they would have to take a class now they change that after my client went through the academy required the exact classification serious or are we looking to the nature of the position itself well so is part of your argument in response maybe along the lines of i don't know i mean i have to say i said about a lot of why does the nature of the pension tell me anything about whether it's the same or similar position as a federal judge the biggest perk we have is we get our salary for life at the age of sixty five i serve for fifteen years i keep getting my salary there are a million other judges out there including tells me anything at all about the nature of the job duties whether the law i don't think has any bearing on this i don't think it has anybody in the relevance to the argue that i'm making you know i mean it has no relevance as to whether or not their positions are same or similar book to play the devil's advocate here with both of you apparently that one of the reasons that they differentiate and i'm not going to get into federal judges deserve or don't doesn't have one of the reasons they differentiate with respect to the law enforcement pension is that one of the factors that go into deciding who gets those pension and who doesn't is because there is a greater risk to law enforcement officers over the course of their career and that they are that compensated for that with a higher pension no gray zone doesn't that at least reflect  and i think if we look at the positions i use other examples in there i mean if you have cases like this court decided davis in two thousand and nine and that was always the same department however there was a complete change of the job and the argument back and forth and this court should not come up i mean this is this is ridiculous this is this is same or similar even though their jobs are are definitely different had to do with mathematica titian before before that i guess what i'm putting up the court and i see my time's into my rebuttal is i don't think this court really addressed what i'm bringing up in it just to be quick about the the spanish language course my client you know if he would have been able to speak spanish and i opted out back then we might not be here today i might have wanted the american wart is it really going to keep him you know in judge two hundred hours it sounds like a lot but when you really think about it in scale of back you see that that my client testified and all the judge said two thirds what it i know he said two thirds to seventy percent was almost the same the same instruct so at what point is that line of demarcation to determine that it's either completely close or sufficient enough but i'm going to reserve the rest of my time judge's factual finding shows is that was a petitioners own admission that one hundred eighty hours of training was different the spanish are high especially which of course i had been struggling to understand the inclusion of those two hundred hours and i'm not saying should be any sort of per se rule but let me ask you this if you are a ins officer on the border in texas in el paso you have to take spanish because everybody you're going to be dealing with a spanish else suppose you transfer and you're still an ins officer and you're on the up in the let's see from where one of those northern places near canada somewhere up there in the frozen arctic if you're up there and you're canada and suddenly you're dealing with all these french canadians with their improper french and you know who do you have to now take french in order to be able to do that job i still think it's the same or similar jobs it's just that the individuals are going to deal with in that capacity speak a different language so i'm wondering if it makes sense to include the spanish language course i mean if you can ins agent for example in washington d c is required to take the spanish language for the record shows that for the position is required to keep spanish language course regardless of location and it's really not the board's role to hold that part of the loop security what should or should not be given to its employees or the three this has nothing to do with whether or not they have to have the training it has to do with whether the training has anything to do with whether the job is the same or similar whether that part of training has a liking for example when you start a new job you know how to use telephones but there's a new regulation simply says that similar positions are positions where the employee can be interchanged between the positions without significant training and if it's over if it's the department of homeland security's decision that spanish language course is significant training then we're required to follow that it may well be significant training but why is it necessarily indicative of a different position i think that if we moved you up to minneapolis so well and you would tell you learn french because everybody in the media that is kenyans crossing the border in droves you know what what does that mean you're no longer in the same position because you take it like any language immersion is really  term training to some extent it doesn't reflect agency determination that a particular language is very useful or for dealing with the knowledge requirement we just throw that out then i don't think the ultimate result will be different because you would still have there are other a hundred eighty hours of training required for his position and the other a hundred eighty hours of training is entirely really just immigration law in so why isn't that position just as much of a position that it should categorize be categorized as a law enforcement position as an ice it's well it's not perfect it is not a law enforcement position and we're now arguing  as an immigration agent because they investigated different areas of law the a t f inspector being explosives and guns and the immigration agent being immigration there's never been a holding from this court that says our law enforcement officers need to be treated similarly just because iran foresman and as the board held after the hearing in this case the record showed that or the petitioner failed to show by preponderance of evidence that the knowledge skills and abilities of the position for the police officer position made the position similar to the immigration agent position yes and a lot of people would be pretty surprised if they got into the federal system and they shift from one federal law early to the petitions council actually indicates that there might be a greater degree of risk as to going outside apartment events and searching for illegal aliens as opposed to just being confined within the facility and defending facilities  that we were discussing before about retirement i again like the spanish language for us i don't think there should be any person apart per say in any direction and i can see why if you have all the same retirement benefit that may tend to tell you a little something proxy a very distant proxy but it might tell you a little something about the job being similar but just because you have different retirement programs or different types of  why does that tell me anything at all about the underlying nature of job as it's being performed on a day to day basis so i believe the board ended managed to judge noted that that factor isn't exactly dispositive it's just helpful in making the determination and write that factor from ottawa why is it helpful that if you have a different retirement plan i mean look at what the c s r and serve right we get all these retirement plan cases early government points are under c f r later government plays or first those are totally different retirement plans it doesn't but but it's exact same job like you know you sort of saying i don't it's hard for me to imagine that differences in the benefits that one accrues in the tiredness necessarily imply that there are different jobs we derive that requirement from this court's holding where does she which were the but also not dispositive there that the positions are more likely to be similar because they have to issue if you look at the reverse then you could say that they may weird because they do not have the same issue codes but isn't it possible that having the same codes and the same retirement speaks more about them being the same and should carry a little more weight then it's the fact that they have different given that there are a big million different codes out there that are possible and that just the fact of just codes mean they're not you think that really implicates anything about the underlying nature of the job as perform case i think that that is actually may be a reason to think maybe it does make a difference here and that's why i was very careful to say from the very start should be a person a robot in general given the vast number of employment codes that  within the government it seems strange to me to to say there's weight given to the different codes well we're not asking for this court to issue a per se rule either way as much as they were just saying that this was one training i think the board wants to focus only on training only saying look how much more it is whether you agree or not with one hundred eighty hours three hundred eighty hours or less i think you really have to take that two pronged look at the federal law enforcement officers do they do the same thing carry guns or swung a clerk and one that was a chemist whatever it may be there's got to be something a bright light that this court can to say you know we need to make a decision on this because same or similar does not mean exact and i think that's what the board wants i think that's what council's argument i think that there's been no approach because all the cases live seen talks about distinguishing court dash and no one's really kind of talk brought that up but my client had the opportunity to take the spatial huge worse immediately after the first thing because that's when it was scheduled but meant he testified that some other people would come back later like months later in the first year so i have nothing further to say unless the court