hearing and at the hearing decisions which violated my client's guarantee of a full and fair consideration of his case which he has pursuant to five u s c section seven seven zero one specifically the administr judge precluded the testimony of two very key witnesses the first is mr christopher kohler he was a fellow air traffic controller missed a call it was also put on administrative leave as was my client in july of two thousand  mr terry tracy a member of management in fact the head of the human resources in a ministration at the new york trade con in which she told him that he was medically decertified and this is important because that is the same exact thing that she told my client when he returned to work which at the hearing she did not in fact at a pre hearing submission the agency the department of transportation it agreed that she told my client that he was medically unable to to perform safety re duties that's working radar when you can't work late or you have to it works like that if it's available you can't work on the scopes as they call them she denied that and the administrative law judge stated in his decision that it was a he said she said also the flight surgeon dr jordan shortly after mr tracey told him he was medically decertified spoke to a representative of the flight surgeons office who told them absolutely not you're not medically decertified you can work you can work great up my client didn't make that hope because he trusted what mr tracy told him and i think it's important whether or not my client was medically decertify for a number of reasons number one when you medically decertified the ministry of lloyd george said it's no big deal you still have work available to us it worked in flight data which is pulling strips and doing kind of clerical work that's true if there's work available number one number two when you medically decertified you're basically done as a patrol that they pull your license the burden  now on you to prove that you are medically certified mr mr delaney the petitioner had gone through this in two thousand and two thousand and one we had kidney stones and he was medically decertified for nine months it took three or four letters from his physicians it took his union getting involved it took lower levels of management getting and gave him his medical decertification at that time he was a whisper away from being medically retired which occurs if you're medically decertified for a period of time the other reason it's important as to whether or not mr tracy medically do so if i my client is because she did not have the authority to medically do certify him and he wasn't in fact medically decertified we found that adding up the fact so the saying everything's ok with this can you stone status quo in this case he's handed the current status report and the form eighty five hundred which he had failed to check off the box and he was told you medically decertified a lot different than having to just get a letter from his doctor what check off the box she told the medic with the sort of like it's a different category and it connotes an entirely different different thing than simply having to fill out the form correctly and get  being handled in the eastern district of new york my client was at length and other controllers were suspended and then terminated for failing to check off a box on a medical form the reason they failed to check that off was because they believed at the back said necessary to list that visit to the doctor he may have believed that of course he was in the governing agency and failing to check that often enough but is things you are in july of two thousand and five when he was see this current status report he was told he had thirty days to fill it out and get it back when he was handed this from eighty five hundred he was in total check off the box of in europe be able to work given the opportunity to testify as well that's my point it becomes less of a question of fact if there's two people saying that they heard the same thing from this woman as opposed to he said she said it would have completely changed the dynamics of that in my opinion flight surgeon telling your supervisor who then passes along to you so when you hear from you supervise you medically did decertified you don't pick up the phone and call the flight surgeon the state is this true i thought his supervisor who was miss his supervisor was mr king and except when all these air traffic controllers were first returned in december of two thousand and five they were put under the supervision for a limited time by miss terry tracy because they had to get we they had it coming they had region he would have testified as to a couple of things first of all he assisted miss that the way in two thousand two thousand and one when mr delaney it took him nine months to get his medical we sort of a patient back if he was decertified he would testify that he took a personal these controllers for a firmer eighty five hundred and again he would testified that by medically decertified missed at the laney based on this fairly to check off the box he was being punished he was being disciplined for apply for me to five hundred that the administrative law judge we lied primer for maybe five hundred i thought this was a new form five now this was one that had been filled out in june of two thousand and five this was his last for me five hundred right before he was put on administr capricious to make a decision for the ministry of look let's make a decision that this was not a violation of the stipulated without at least hearing from the individual who have negotiated this award and he could have stated why he believed that it was a violation of that of a constructive discharge there's also the issue that just believe me it was not given certain discovery we got another leave without pay mr delaney had requested to leave without pay first two months and then and his counsel a number of individuals who have requested leave that was compound it by the fact that the ministry of large trucks would light heavily on the decision with regard to this other air traffic control it took two months just have to make it official he thought his supervisor whom he was supposed to speak to was tapped into the air traffic manager was going to make that decision so we put it in writing on december twenty sixth which another week or so meanwhile plans are being made by humans union he's getting unit then he puts it in and then it's another week and then they say well we know it's busy it's it's the holiday season they knew it had to return his testimony it hit mr hilary king his supervisor had acknowledged that requirements for the f a a their requirements that a form eighty five hundred being completed also additional testimony was presented that mr delaney was previously aware and there was a problem with this form in the five hundred point eight that was presented to him in july the settlement agreement reflects the fact that there was a letter of reprimand placed in his file at the time he was reinstated because he had previously left out information from his form in the five hundred twenty eight and also dr jordan testified that he we disagree that the issue is that that is in fact a significant issue put simply miss tracey is not the person who is in a position to magically decertify it mr deland understand that with her having s did would that have been relevant and even well your honor mr tracy gave mr delaney a letter the letter said that you have you are missing an item nineteen and the letters at that you need to get a current status report to fix that the evidence in the record the time was that mr delaney was met temporarily medically decertified once he got the current status report she would be able to return to work and this was also further supplemented by evidence in the record this is in doesn't have an adjective in front of it it would that what she said was accurate in your view if she said it well again i think in looking at the context it was a temporary thing started because nobody raised on it and i'm looking for a yes or  no if she said you never did medically decertified and if accept my assumption that that would encompass both temporary and permanent decertification isn't the government's position that what she said in addition you know happened in there what the nature of that settlement agreement was and the settlement agreement is in the record your honor it is at one forty five and one forty seven benefits that they would have lost fifteen of those days were actual working days and not holidays or weekends looking at this amount of time a reasonable person simply would not have felt compelled to resign especially given the fact that the request was placed in writing on december the twenty six in addition the testimony that mr delaney was allowed to present related to the wine testing one employee who was supervised by someone who was directly under mr blaney supervision court proceeding sits by hypothesis you can only proceed in one why wouldn't it be the case that the first place you go even assuming that the two actions are identical why wouldn't he still be able to proceed in the i'm a speedy although he might not be able to proceed in the district that is the sequence correct the sequence we believe he was permitted to file and then i'm sorry the sequence one should know him with what you were saying i interrupted we believe that he was permitted to file both cases the manner in which th when you want to there's just three quick points i want to bring up there is absolutely no such thing as a temporary medical decertification seriously decertified oh you're not again typically when you get a current status report you fill it you're still working where are you still working safety related duties if there is a problem with that then you medically do certified medical decertification the presumption is that it's permanent the burdens are in you to prove that it's not so there's no such thing as a temporary decertification nobody and you'll be back working that's not the case though the burden is on you to prove that that you can work safety related duties with regard to service to leave it with what it's getting out it's absolutely right that what they're serving is now that we've filed in the district court out with the m s p be that it's not the case if there's a problem with that with the choice of form it's a decision for the eastern district of new york in fact if the position of the government here has that we can't proceed with this matter next day medically decertified no answer on your request for leave and then you get a paystub which is completely wrong with those things amount to i believe a reasonable person who missed the lean issues would have fel