court i represent first sergeant nancy whittaker a fifty five year old female veteran of both gulf wars a thirty percent or more disabled veteran who was a special education teacher for the department of defense schools at fort campbell and mrs whittaker has been passed over by virtue of her veteran's bypass to which she was subject by the agency and the question today is equitable tolliver nischelle are you telling us that she was passed over because she was a veteran and that is our b we have found that with but for the abrogation of those points ten to fifteen points decline to extend the doctrine of equitable tolling here it's interesting and that other than specific notice of the bypasses for the two positions was provided and the other than specific notice was in this is conceded by the merits of a federal lawsuit pending in nashville right now and that's the notice of the discovery filings that came more than two years after the fact first sergeant whittaker had no reason to believe that she had been passed over by virtue of a veteran's preference abrogation these are statutory rights given even if we agreed with you that the government argues that she had tennessee the lawyer who had just begun to represent her and provided a notice of representation that was i that was you ok and that was good that's you yes back once the report yes i did not reference veterans bypasses because the the case in discrimination claim for which she hired me to add to a class action proceeding against this agency so that was a race discrimination retaliation case that's still going on at the u s e e o c in fact the other case where this was these bypasses expressly referenced and where the federal judge in march and usually october six of twenty fourteen noted agency trickery as far as the supreme court is concerned in our opinion under current that express opportunity for recourse a notice of that hasn't happened to this day sergeant whittaker has never been told by the agency that these bypasses occurred she found that in documents compelled and in the ok second later the reader of the report of investigation is the agency itself who hires the investigator to conduct an investigation of an e o claim the reader the report is also intended for the e e o c administrative judge who relies on number three the middle school teacher of moderately full time severely impaired in that number three says complain explained she was qualified candidate with a veterans preference at the top of referrals but was not interviewed she that she was not furnished proper notice and still has not then she made this assertion which is merely an assertion and she asserted it was done for retaliation the whole basis of this report of the station in the preceding case that i had of clarksville tennessee where there which gave voice to this it was in that discovery process that she actually found out that it was more than an assertion that in fact but for this passover it was more than an allegation by course i'll get to the constitutional problems with that but there's at least a due process notice violation if there is a lot of discussion an attorney argument but i didn't see it anywhere is where there was  given notice of something exact of the date that you think your rights have been violated and so at least as of the date of this report when you receive this report she possessed a belief an allegation under thirty three thirty a and b for a violation of a preference right or entitle me and had mrs whittaker been apprised of that and even of the fact that those had been worked prior to having an unrelated case this report of investigation disclosed those facts or three years later discovery in a federal suit in nashville having discovered that there she would have exercise those rights then that's why the supreme court  allows for equitable tolling even to be outside the sixty day period it's very clear under the fifth amendment procedural due process and that's something that this court has already this year recently as two thousand and seven and  there is an obligation notice and the statute doesn't impose that notice requirement with regard to another kind of government service right but there's no delegation here either in the dress herself said that this is a very first impression as to other specific notice she alleged and she received this port report indicating she pledged she was bypassed improperly and her below rights were violated she challenged that so there's no question she held the belief that they had done this absolutely your honor absolutely there will be the fifth amendment as anything other than a technicality and we draw the parallel between miranda rights those are a technicality it would seem to listen criminal realm but the fact of the matter is when one is subject to these benefits and one is a thirty percent disabled veteran in the statute does not leave a gap explicitly to allow that gap filling and that discretion the part of incidents very important particularly in the complex of multiple action even though congress therefore she should win even though she had actual notice and made these allegations herself and had possessed the report that detailed them and you would like you know due process nonetheless due process requires that they agency ha since they are careers that she didn't up our time on a complaint with the department of labor the issue now is whether or not labor and the board was correct in finding that she did not qualify for equitable  we contend that the only two ways she could qualify for eckel group will stolen is that she had to file in defective complaint with labor within the timeframe which they also images that she did not an became aware and able the fourth in a separate on proceedings the agency and the board made little terminations that she became aware at least when she received the report of investigation the report of investigation with some form the pages long but the report had is announces at the beginning which was seventeen pages long it also hand and index to everything else in that report  got the report an investigation the latest the latest yes ma'am as the latest she's gotten when she got the report an investigation so we believe that and then in addition she had an obligation to exercise due diligence to come within sixty days of that particular day and file for complaint with the apartment of may when in fact the department of labor found the same thing that the board found that she didn't put forth any evidence that w qualify her for equitable tolan if you look at the department of labor's decision on and also if you look at the apartment of labor's decision that it issued in july two thousand and eleven which is a joint opinion it's three seventeen  eighteen we bring that up to show that was quicker had found several complaints with department of labor before so she was aware of the fun time she was not new to this so she looked she had to come within sixty days of when she had actual report of investigation but since the board say at least by march eighteenth when her attorney found his we invest his or not know the representation they use that twenty second because february the twenty second refers to her response to affidavits that had been submitted by various officials of the agency and in her responses to  responded to them simply because the very were the twenty's second two thousand and thirteen report of investigation was a culmination of a long investigation for which she had been intimately involved and responding to the affidavits from the one the various officials of the agency so we believe that the war was correct when it found that she did not meet her did not exercise due diligence in filing her complaint with the department of labor within the six a day from when she had actual knowledge and it's all right if we use march as the beginning day of the sixty days but all i'm saying to the court is that she had knowledge long before the march day and to the extent that they were referring to the court in tennessee that refers to a different a different school year two thousand and ten two thousand and eleven as opposed to two thousand and twel and we believe that the board correctly denied this will occur and miss her request for corrective action because she'd an ammeter obligation to file if unless a court ha so diligent that's how she wound up not learning that she had appeal rights on these particular bypasses until the time when she felt those complaints pro se she had been pursuing a federal case in nashville a case that has been stayed the hear of the trial was supposed to be january twenty second and judge drugger down there stayed that case because the constitutional issues here are so important and the case there are there is  information about the role of the agency's general counsel in bypasses all over the place she was so diligent she thought that her rights were being pursued she did not understand as a pro se litigant as to these two bypasses before you that we are very clear judge moore and i thank you for understanding and clarify that we are asking that this fifth amendment due process rights apply to these kinds of proceedings just like in  proceedings after she was denied in may from the d o l recourse that's when this winter hired me to pursue this kind of appeal to the nearest his protection or the only other point i would like to make that has not been brief d is that the this accusation that this double veteran fifty five year old sergeant special ed teacher encore campbell did not exercise diligence is not found it at all in the record this was a person who were seeking in every way she knew without including with to counsel in two different states with two different cases in addition to this third one to get out of the position she found herself in and to get a decent transfer  even a promotion we're even talking about a lot of money here and i believe that the policy underlying these veteran statutes as well as up at the minute self would call for notice to be provided that is express and i think that that can be used you can read the  in the reply brief on that but the notion that there was a lack of diligence is woefully lacking it's incorrect this is one of the most diligent people and we argue that this is a case where equitable tolling would apply and so that her case  reviewed let's just get into why they passed her over all these times we're not asking for despise it really though we continued and in closing i reassert that the veterans that these bypasses these regulations that the administrative judge felt she did not have the