your honor i have been involved in this case from the very beginning not long after just a few years out of law school and here we are one thousand years later eighteen years ago when jim thompson was fired his employer was chairman needed in a way designed to hide what was really happening determination was not a rogue act by some low level employee it was done literally by the hands of the man who ran the lottery the most senior official there and it wasn't a rare aberration wasn't like what we see until what we saw the light lottery was good personnel practices with proper protections in place for employees and about the exams same time as mr thompson's engineer determination a jury was reaching the conclusion in the fox case that mr fox had been fired because he it was endemic at the light the reward was aware of this in september of ninety six almost immediately after the to the constructive termination the lottery board wrote a letter to mr king the executive director informing him we made a mistake when we hired there  got a three month review period here and in that letter it identified personnel violations among other violations the board knew what it took no action off site quite voluminous i wish i had the answer to that i did look at at some material on our server that we had in the office and there columbia wendell hall and mark back mark back was recently been proposed to serve on this bench these are these are skilled lawyers these are not lawyers without experience and knowledge in the field and if there were a viable monella claim they would have addressed it before reaching the agreement that they wouldn't seek summary judgment so you know from our perspective mono has never been the locus of  ignored or the lack of timeliness rather when it's the government's failure to advise the employee of his or her right to go to zero eight in this case however  i can state with certainty because i was on these phone calls that the administrative law judge judge lim was absolutely unequivocal that this case was solely about the reduction in force it was not about anything that happened earlier and by earlier i'm not talking about the pre terminations stuff i'm talking about but determination in a constructive discharge that first only a appeal was found on october seventh long after the fifteen days that were then permitted under the under the codes in the rules for filing an appeal to oh yeah and we argued that it you're going to put me in a difficult position my opinion is that it should have the vote we need a view was that it would not and could not that the question before the o e a was whether they really had been done whether it was a bona fide riff which we have from the beginning acknowledged to be the case and whether he lost his job through that writ now we said but the only reason he was there was because of this misconduct that was of no interest to the ojai they had a very narrow view of the said that transfer happened before the roof only looking at the roof was he in a position that was eliminated yes he was that's it and that's what that was the scope directly to the issue of the sure the long the short of it is that i don't believe that there is anything in the record that specifically states that only a was cabbage in its  complaint memorized but i will soon that we said that frederick king took this action that frederick king was the executive director and conceivably when we look at triplett in particular we can see that and we look at the statutory scheme where the executive director is the chief executive officer of the lottery board and we then we compare the circumstances and triplett in terms of the statutory authorities the role of the chief executive officer the role of the agency in promulgating rules and the chief executive officers role in that regard it is it is  perhaps there's a way that one could argue on the complaint in answer that that mr king was a final agency silent policymaker what the as i read the statute if the complaint alleges that king is the executive director and then the statute assigns policymaking authority in this director not the board itself the executive director is the personnel authority right for the lottery not by the way for him or herself and not for the deputy director but for everybody is that lottery including  so in that regard if the personnel authority is the final policy maker as a relates to personnel matters then that would get us there the problem is that we always have to struggle with this with drawing that distinction between discretionary actions by somebody which course are not final policy making authority and the ability to set the policy and unfortunately d c law does a very poor the the actual role of the executive director in making employment decisions for years and time after time the in which you know that the formal words of the statute are not dispositive my colleague from the district of columbia says look at everything that it says in the statute and i say yeah and look at what actually happened with knowledge and without interference by the board which was largely inactive i thought the in the earlier go round of this what we call thompson one that the court had said that king had absolute discretion to identify positions for abolishing that is correct judge griffith absolutely right his testimony unrebutted was that he decided who to hire who to fire without  whatever i can get and i and that's why i say it's a little uncomfortable because i think one can make the argument as we have that just on the picture just in terms of the law it and perhaps maybe if we go beyond that and say the facts alleged in the complaint i know twelve b six motion we would prevail but on a summary judgment motion i think there would have to be some looking at the facts the facts are that mr cain testified that without district court to make that sort of determination no judge i believe that the facts that are before this court are adequate for this court to conclude that that in fact mr king was the final  policymaker i think it's important to know that there is no contradictory evidence all the evidence in this case shows that mr king acted independently he acted with authority and not just there is any contradictory evidence over whether anybody had any role in hire and fire and transfer decisions other than mr king that's the actual decisions and even the policy underlying it while there including the fact that mr king is the person of the ori for the agency so i think that that puts that issue to bed so if we're focused on the transfer into or out of this court already held the constructive terminations that happened in august right in that regard mr king was the personal authority he was the final policy maker if we tie that to the to the ri statute is helpful but not dispositive it's clear that mr king was the final policy maker as it relates to the written but just to be clear so your but your first order this is all that your first order position is that we should be getting into this enterprise that all because of this court believes that the record is not adequate to actually reach the conclusion and frankly as i said i think the record is very strong this regard this record is more than adequate for this court to conclude that but suppose that we just say well the spirit of the agreement or the letter of the agreement according to your argument would preclude the ability for us to get into this issue now anyway because the functional equivalent of asking for a fifty six determination in the districts favor so will do that then it goes back down the case goes back now and then this issue remains open it does judge although i don't think that abiding by the agreement closes this co from reaching the affirmative conclusion that mr king was the final policymaker right so the issue you know i don't think that that's outside of the realm of the power of  court and frankly i think that the reason george lee arm issued the decision he did was because he recognized that it could not be presented by the defendant if the case was to be dismissed he had to actually start a party right right   never to be before you again on this case but if you were back to the trial court then the arguments we would make are that there is no question as a matter of fact or law regarding whether mr king is the final policy maker and indeed that they have that they have waived that argument by foreclosing any kind of motion that would have addressed it even though they could have much earlier would you have the same way were already met with respect to the that ground on which the district court did resolve the cases wanted i mean really the decision by judge leon  is is so problematic i don't know i haven't even begun to think about whether there's any sort of waiver argument by the district in part frankly your honor i don't know and i hope that my my colleague will defend that decision because i see her role i live in the district and i want them to do their jobs but i don't know that the government truly believes that judge leon's decision was a sound decision that you know that the judge asked for briefing as his i just step back and say the judge called us in for a status conference after one of my many motions to try to get the case restarted the case w for eight years or something and we met in a conference room unfortunately not in the record and the judge indicated that there would have to be i guess we have to schedule a trial he said and then suddenly he sort of interjected but w are damages permitted in a case like this and we said you mean a due process case your honor and he said yeah i've you know and so he asked for briefing damages on what damages were permissible and so we explained it in the appendix what we believe the appropriate measure of damages was in this case i guess i'm going to be asking a question that to which there's a very easy answer because i don't need to get in the merits of whether it was proper whether the decision on how to allocate the burden was correct i don't need to get into that i guess what i'm asking is if the proceed if the case goes back down then the parties have to deal with what is still open for resolution when it comes back down and i think argument would be that there can't be so a spontaneous determination as to now either because there had been a way and i guess my question is does that same logic also apply to this to a sponsor determination that that somehow would have come up in that whether whether mr thompson's entitle to damages is is not a hard question it's not it's not like that i don't think that there would have been a motion for them to have  filed i suppose if the court wants me to make such a motion i could do so with some ease but i don't i don't i don't know that that's something that we would put a lot of little a lot of eggs in our basket for evidence relates to calculation of lost wages which i think exceeds a million dollars and emotional distress and there's voluminous evidence from m the morning and if it please the court i'm very rolston representing the district of columbia there is no one point three me on this case for trial because and you trial would be futile because the district would be entitled to judgment years first of all the plaintiff has never argued that we have waived or for three days our argument by by not immediately raising it if it wasn't not immediate would you say not immediately reasoning yes and the stipulation was based are accepting the facts in the complaint there was no concession on our part of those facts but  i'm not sure will i think yes that the court could rule based on a judgment on the pleadings correct there was no allegations of any decision made by a final was not personal the him or he had not been transferred as a ruse into that the court says the district needed to engines disruptive behavior so again it's clear that early on we had at least appeals he abandoned his opportunity to pursue that on his untimely honoree well i think as the court said if you didn't get final notice of the transfer and his rate to appeal to then that his time hadn't started it that amounted to a terminations accepting those facts only has jurisdiction over terminations and authority to reinstate him to the original position and there are facts that he wasn't transferred is just job title was clarified held in judge brown's decision and there has never been an assertion before now that the district of columbia extended process to mr thomson he was entitle to process for the constructive discharge not for the rich we're not arguing about the riff it was a legitimate riff it was the constructive discharge that's where the wrong was done the wrong w court as we explained in our brief it's difficult for us to respond to this issue before the court of appeals when it has not really been explored by the district court there's no district court decision on  government's in in an impossible position if they want to try to argue that mr thomson had an acquitted due process the government hid his trauma nation behind the ri clearly they did not provide notice to him was it irrelevant because hypothetically theoretically may be only a minor provided relief course that brings us to the grommet of the appeal mount healthy the government has the burden to prove that the outcome would have been different not that hypothetically theoretically possibly maybe only a might have decided your honors i want to hear as to what we're looking for so if i can just give you thirty more seconds thank you because that's all i need obviously we asked that this court reversed th dismissal we also ask that this court find that mr thompson has in fact proved a violation of his due process rights and in that regard that is merely reiterating what this court has already h we asked the court to find as well that mr thompson has proved that quantum of his lost wages damages it evidence which mr thompson has presented never with any substantive refutation we ask that this court find that mr thomson has proved his entitle me to having his pension read computed by the office of management and budget we asked that this court remand the matter to the district court for determination of emotional distress