which is that it's my first time sitting with our newest judge richard cerrato and i think the same is true of my colleague underpricing just speaking on behalf of judge bryce and i'd like to say what a pleasure and honor it is to have danced around with us from the beginning of many jurisdiction when you accepted a federal career in turn program position with the same agency furthermore petition that asked that the board decision that the four put it is right and  terminations was not an adverse action when he entered that position should be reversed and that he should have been afforded due process and board jurisdiction when he was terminated the petitioner brings three issues first primarily is that he should have been permitted to return to his career status position with full board jurisdiction and appeal rights when he left his position with the same agency as a customs border patrol and ice are within the department of homeland security and they would be considered part of the same agency unless the agency issued an appropriate directive requiring their treatment at separate agencies for eps of purposes so i mean if your complaint that he should have gone back to the position from which he came for that he should have been converted into a career conditional i think employee one or the other but that he was left no remedy the agreement that he entered into with the agency which is in our  at eight twenty three is the employment agreement states if you had previous competitive status which we had you can apply for reinstatement if you're a current u s immigration and customs enforcement employee who held a career conditional point when you accepted the intern position and you're not converted you will be placed in a career or career conditional position ites there was no qualification there which states you will be returned to form a position mr sculp excepted this x to position with the understanding and the agreement of both sets a twenty three and a twenty four that he was not giving up his career i too was a four year federal ploy he's a veteran veteran preference eligible he never was told he was going to give up this right so let's let's assume you're right that  to return him let me put it this way let me ask the question so i take it that you would not disagree that if someone clearly engaged in misconduct during their internship and that was the internship was terminated halfway through that would not be a removal that would be subject to board jurisdiction correct correct are been terminated but he still had this side agreement what is it that would give the board jurisdiction or would the board have jurisdiction to enforce the side agreement but they very well might not have have on your prevailing on the part of your argument and would you say that he completed his term and therefore he was in a different position than somebody who had been terminated for misconduct during the time yes so he if you fail on am and so he's at this point he completes his two year tour and our argument is that this disco should have been given one of the other he should have been given adverse action appeal rights which the judge found on the board found in remanding that his terminations was not an adverse action and that's why he shifted the burden to miss the skull and they said they would have accepted jurisdiction if he could prove that he was removed for conduct on unrelated to conduct and because homeland security claims he was removed for conduct he lost everything he lost his his his adverse action appeal rights and he lost his his abilities returned to his former position so your argument going back to general point sort of what you're left with is the time in which so your position is because they let him kind of complete his be a different argument but the facts are he was terminated on the day the last day we actually had an argument earlier on that he was even served on time but that went away so he's he's terminated at the end that the paperwork that he was as a terminations that occurred prior to the very end i e five o'clock quitting time on april fourteenth and let everyone is there no jurisdiction if you're wrong about that well well the petitioner would still argue your whole argument on his having completed the internship correct ok any any indication that he was giving up all his career rights when he accepted to vsit the exit the position and so we would argue that board jurisdiction would kick in there because he would have still retained his his career rights had he not the boy process a proposal an opportunity to respond he lost all of that and one of the reasons he lost it was because he wasn't given notice that he was losing those rights and so that would give more jurisdiction as well you know on the notice question is it the case under the lords he says that you have to be given notice that you are moved let's say to an accepted service position from a competitive service position is that sufficient or do you need to be told all of the various consequences that flow from being an ending accepted service position in there and there are several the board appellate jurisdiction under certain circumstances the board case law is that a petition there and appellant has to be advised he's forfeiting his appeal rights just stating you're going to an accepted position isn't necessarily telling someone what the court today even though in many circumstances that is the principal consequence of moving to an acceptance of this decision that is a consequence however i believe the board case law not this court would say that notice is a requirement to forfeiting your rights and the remedy the relief for that then is that he retains his federal career right appeal the only route to jurisdiction over the decision to convert an f c ip in turn like mr scull was to a permanent position at the end of his internship if the narrow one provided by five p a far to thirteen thirty two  and most importantly for our purposes this route requires mr skull to show that his failure to complete the internship successfully was for reasons unrelated to misconduct on the board explain that to do this mr scum assure that the agency's proffered reason for his non conversion was not the real reason for the agency under siege and confused about the regulation of how a plea here is yours so you're saying that you don't have jurisdiction if he is removed for misconduct or something performance so you're saying during the internship program the board has jurisdiction over performance related charges but not with respect to misconduct slander so i'm just wondering how that distinction is  i mean under the way the statute works as i understand you're either an employee and you either you know been a key action has been taken against you and the action taken against you was either misconduct or performance related i don't know who else gets to draw the distinction between we can track what misconduct cases on one end and core performance cases on the other and the board can decide whether you know which is where it gets jurisdiction where is that in the statute that gives the board or the government the basis for saying they have jurisdiction over performance but not over misconduct with respect to these particular positions i don't i don't know that there's i don't know that that's exactly kind of mind in the statute but the internship program which is created by executive order i believe and regulation it seems that it should be able to define its own terms as to when the  when the when the board would have terms doing that then it's true that the statute that gives the board jurisdiction is first to jurisdiction that is given by statute or regulation so you know that's why o is if he is an employee and i guess he is an employee because he has an expected service position for more than one year in the same agency right and his preference subject so he's an employee right we have that much then the question is if the employee why doesn't the board have statutory jurisdiction under chapter seven b fuck and the answer to that that i take it that you would give is to say that he has not been removed if he is taken out of the internship programs that run i think that's right your honor but i take it you would say that he has been removed if he were taken out of the program for a reason that isn't authorized by the regulation is that right i think that's right which which is peculiar and maybe this is right and that doesn't seem to be much law in this but it seems to suggest is that if you have two people one of whom they're both in terms one of whom is taken out because of misconduct the other of whom is taken out as you said because of poor performance the one who is taken up because of poor performance would be deemed to be removed and the other one wouldn't is that is that the government's position  think that's what the board what what the board has found and yes your honor it strikes me as peculiar there's no i take it there's no regulatory statutory help on this this is just the position that he voluntarily signed up for at the beginning of this two years since the s c ip was a position that by definition came to an end under certain conditions because i'm not aware of a reason why they wouldn't have that ability on you know in arguing that the board has jurisdiction mr skull has relied on contemporaneous e mails from two documents a contemporaneous e mail from the agency which he argued showed that showed that at the time of his term a nation there was no mention regarding his conduct far from supporting his claim that their e mail upon which your mr damage to someone else's property during the accident and indicated that he would not be converted because he's actually did not meet the standard of conduct for law enforcement officers so other than other documents he referred to as  which doesn't state that he wasn't removed from his conduct apparently he's making an argument that an affirmative statement was required and there's no authority for that proposition so neither  well i think i think the the agreement was part of this internship scheme and there was i think it is a different thing to give up rights by agreement than to try to convey the right to a third party a tribe you know something by agreement and it's it's no i don't think kids ordinary to think that two parties can create something for a third entity through their two party agreement so if he gets to closing time on the fourteenth then he has completed the entry ship right yes right now what is it that tells us that he didn't complete sent during the course of the day and had the effect of immediately terminating his internship why did that letter announce to him that his internship would be terminated at the end of the day honor i think that letter and multiple other contacts were made during that day and they were intended to terminate his internship immediately see instanter as opposed to at the end of the day well as at it as opposed to after he had finished the bit of a resume that he'd finished at the end of the a we're going to have i'm trying to see whether they they decide of we're going to go ahead and let you finish but we're not going to replace place you back in your former position or a quibble versus we're terminating the internship during the course of the internship as opposed to but i guess that is what it says and i think it and it may not have made it into the appendix but in the record there is the record shows various e mail discussions between the agency and it's clear between with different people in the agency and it's clear that what they're trying to do is and this internship before mr saul is entitled to additional rights and they are that's their intention i think they also notified him by various phone calls perhaps the language in the e mails that they sent him wasn't  and what it was trying to accomplish but i think the intention was clear that they wanted to notify him that he wasn't going to have another position and that he was terminated as soon as immediately and they were trying to get him notice as soon as they could he was out on vacation that day you know to get paid for the full day i do not know that i'm really having trouble with your affection way that while he was still serving in the internship program and april fourteenth and my question or my misunderstanding the point that you're making that their intention was certainly to terminate him before he accrued any right running but if he automatically had crewed rights if he completed the internship notwithstanding their intention that he not then their intention perhaps was not adequately effectuated because they allowed him to complete the internship i mean suppose they had said we the regulation incorrectly  suggest even after you complete your internship sometime within a week they're after or before you begin your next job we can terminate your rights to that job they'd be wrong and he'd have the internship he had or he had the right to be considered for additional point except that if he was the current member of isis when he when he signed the agreement they had promised him a new position but i don't think he was necessarily so is it the government's position that even if you were terminated the day after even if the internship expires and then he said where like the map you say you go nowhere next year dobbs is that the government's view that he does not have he would not have or jurisdiction he has no rights because he has no rights to another job i mean we're back to sort of the employment agreement and the right to be converted i'm just having a hard time understanding that this isn't a trick question yeah i understand your honor i you know i  mr school had not really raising the issue about the timing of the notice in this this round of this proceeding and so it's not something we had given much thought to what just in general if you go into the program and you're not from because you say that for ice you have a you have more rights if you came from i am interested in treasure right and if you're from some other division you seem to at least have arguably some rights that you can make an argument that you have some rights under the employment agreement or whatever that's worth ok but is the government's position that on this has little to do with when he was terminated or whether he was terminated for misconduct or just because people didn't like him once his internship expired he's out the door unless somebody decides to pick him up position so he has no m s c p rights with regard to the conclusion of the terminations of the internship and  acceptance for another job is that the government i mean i i just don't even know what we're talking you know where you are right i think i think there is a distinction i i felt that the government had met its deadline in terms of  in terms of ending his internship in time and that was an argument that he had raised early on in the proceeding but it's not an argument that he has made to this court  and now i think it is if he doesn't make that argument in his opening preferred at least he's considered to waive that at that issue so it is certainly not something we focus on for that reason i'm sorry that i haven't given it more thought but it first of all it comes to mind is having seen case law about it's errors you know if they if the government makes some sort of error in paperwork is that determinant of if they make an error on a fifty for example and i think they've been allowed to show that something they've stated something erroneous lee i think clear here it's clear that their intention was to terminate him before he accrued any rights to any further employment at the end of his internship they made great efforts the record reflects e mails between them and i believe the legal department trying to figure out when they needed to do this that he was out for that day and so they e mailed him they called him i believe they called his girlfriend they tried to make very clear that they were terminating him before this the for any fight accrued to him and so i think that was the government's intention and it is he was given adequate notice i think he understood that notice i think there was never any sense that he and that he didn't understand what the government was trying to do with the dispute at one point about whether whether they needed to serve him in person that day and he made that argument before the administrative judge in the first round of of this administrative process and then he would that was ruled against he was or keep that he was ruled against in that argument and was no longer supposed to be going forward with his internship not supposed to be going to court even if for example i am told that i  terminated as of june thirtieth presumably i'm expected to work until june thirtieth and if i just say well i've been terminated and walk off then my player has a compl that what you're saying but you know i think the attendant intention was certainly to terminate him within the internship he was out that day and i think that may have confused the way the letter was written or made it less precise because they knew he wasn't in that he had asked for some sort of additional leave so he may have returned from administrative leave i think there's there's something in the record that indicates a supervisor was unaware that this was going to happen and or whoever proved to sleep anywhere that  happen because he actually did ask for leave for that day so just to be clear though if we disagree with the timing of your view is he does if if he he does have rights and if so what are those rights rights to challenge the misconduct right to challenge whether or not he should have the put it another position i think if  still had two weeks so to say they're scrambling around on the last day can i ask about this this waiver point sure i don't read the headings at least of of your brief and i kind of contact and check the con really aware that that you said everything about whether there was misconduct is really not relevant here because he simply completed the sci correct i don't see the aria you here completed whether that's the has nothing to do with whether there was misconduct or not he may have been denied conversion because of misconduct but i don't see the argument that says  he fact completed the internship and then tell me if it if if it's here well it's not here because of the board and the government have always argued that it was irrelevant that he was going to be terminated he was just being terminated it didn't really matter but i would you have not argued to us that he was in fact not removed prior to the successful completion of consent which is which once is the argument that on which absolute program he was paid that final day the government had at least a couple of weeks when they had all the information they needed and chose not to they chose to wait till and the paperwork shows that he was terminated at the end of the of the absent but i think your honour's reached the significant point with agency counsel that what would have happened that they don't even know what i mean would they have the right to terminate of any weight and we would submit that no he had the right to return to a former position this discolored has a decorated marine he served four years given if they didn't put him back in his proper position and we conclude that they have jurisdiction to do that i mean the case is over then too right meaning the board would take jurisdiction well we we contend that the just said you have nothing you can't argue about the misconduct the board said it's not an adverse action the board said you don't have the right to to appeal based on adverse action rights because it's not an adversary action so he's put in this limbo by the board of being in a position where he can't go back which he should have been allowed to do and he can stay in because they just anding him and so we're asking this court to find a remedy and  remanded to the board saying they have jurisdiction over it as an adverse action which they said they don't or saying they have jurisdiction because he he should have reverted back to his old position on that no man's land that that the congress didn't intend when they started the absent the last issue which didn't really come up in a raise which i raise in my brief is the dean holding from the board that found f sips are violent dean holding and i understand the government's argument is that skull is not in the same position he wasn't a veteran applying for a job my argument was he too was harmed by the exit which made him take that job through an intern program when as a veteran with preference eligible right had they posted it he would have been able to ply for that job and get the better position to force to relinquish his position even though he was a veteran with all these rights and enter epsy a program which turned out to be not such a good program and community thing thank you