in carol i i read that with a small degree of surprise in the french case specifically three fifty nine said third thirteen sixty we said referring to  we endorse the board's approach in these cases as set forth above and adopted as the law of the circuit that says to me that federer berta shifting approach is the long and board is not in a position to overrule but the only way that the terror rule can you change now is by either this court taking brain bank or by the supreme court overruling us so i was a little surprised that you sort of the government comes into this case with one hand tied behind its back why does the government concede that the board can overrule fred and what we were trying to express was that the necessity of form of presenting evidence would remain the same but that it wasn't necessarily the mechanical process we said a two step process we suppose i remember the case yes and we we said ok the board's got it right this is a good approach we adopted  yes i believe fry actually controls so in the so you have you sort of backed off a little bit from that statement in the bridge so to the extent it as i said what we're trying to make clear was that was not the found in terms of findings of fact and credibility it's a very different case when we go through the burden shifting the brooch then when you look at the way the board did putting all these general factors together so in other words you would agree that the board aired her aired here in backing off or trying to change from yes ok but specifically that wasn't the point we appealed and i'm sure we will discuss further to critical point so you say the board was wrong on that yes ninety six and you quoted from the language from that position description i realized in preparing for the argument that that's actually a position description from the fish and wildlife service which happens to be in the record it's not the actual position description  the decision of the merit system protection board should be reversed because it turns has settled civil service law on its head and undermines personnel management throughout the entire government the board well how many people were considered for that liaison job as far as i know specifically just ms miller what do you mean none other than specifically and there's nothing in the record that talks further than that but there's also no indication that as the as they were working on creating this new position that they didn't consider management decides it wants to create a position at the g s or thirteen level and the people who actually have to write up the position description in a seance not just are having trouble justifying been they will go back to manager and say ok need some more responsibilities or i need some more something so that if you want to be a thirteen you need to give me more so what the more that was given ms knoller didn't meet those qualifications did she yes she did have a doctorate what and move towards it means using the words legitimate bona fide is it your view that that's the correct standard at least you may quibble over how they apply them but is there an a standard the agency does have to establish that it was a bona fide or image event reassignment yes i have as a general proposition any management directive you know geographical location whatever any managing director should be at least on its face off and your that part of that the efficiency of the service move in to what you think the correct criterion is i think in training we didn't use the term efficiency of the service in connection with legitimacy in the court did i and i will say that in a variety of  board decisions and decisions from this court there's language to give to the effect of sometimes and just as above feed a legitimate managerial discretion exercise and just stops sometimes it  reassign they talk about that they believe there's a reassignment would be good for the service that it would promote the mission of of the agency in alaska which is of course a fundamental managerial responsibility is to use your personnel their talents skills and experience where you think so what do you want to do and we have you for substantial evidence so even though the board at least in reconsideration applies in name at least the standard that you're saying is the correct standard and what do we do did to say that even though they applied the correct standard if we knew the facts ourselves we conclude that there was not s to follow a management directive you don't know but even you are not coming here saying that that's the extent of their review and they can't get the underlying action at all but they look and if they look at the underlying actions only to determine whether it was made in good faith for legitimate management reasons they do not look at it for the wisdom of it whether they got it right or wrong so let me let me apologize to you misplayed i did dr on my mind because what the requirement was as they expand the position was that the person had to have carried out a groundbreaking work in this area and short shorten that  the administrative judge considered all of the evidence made credibility determinations and determined among other things that miss miller was qualified for the position she heard the administrative judge she  heard the testimony of the ex very she heard the testimony of everyone else miss miller at the time that the position was first presented apparently considered herself qualified for the position she offered to do it long distance qualified that it was resolved by the administrative judge and the board itself with regard to that and the other factual findings of the administrative judge did not make any contrary findings or explain any contrary findings and then just reaching the conclusion that the reassignment was not going to five and four for legitimate management reasons where the record is full of evidence as to the good faith of  of the managers and the reasons for why they were making the reassignment the board otherwise the knowledge that something bad that the agency had a good reason for creating the position in anchorage and for believing that was well suited to be fit to accept the position but nevertheless the board simply concludes as i say without any real analysis just citing the standard and says that because essentially they claimed it wasn't a good in banking or the supreme court can do it to us and the one thing i would disagree with we've there is references in the board opinion to us deferring to the board instead of in french we didn't refer we said you've got a good clear and as i read that section the burden of proof always remains on the agency yeah but you have to go through a two step approach and it becomes a very different case when you do that here because the a j sounds number one that  opinion fifteen five thirteen opinion doesn't change any that it doesn't disturb the finding that it was of the gym that management reason and it doesn't disturb the findings she was qualified and it specifically says we agree with the j on the affirmative defense so they're under the two step terror approach which controls we agree now the board has the the the government has made out  the problem with the agency testimony isn't that it lacks credibility that it's conclusory can i connect taking a step back open to looking at the evidence i'm not clear on how things went down here the board initially in my case i'm saying that then i want you to tell me whether it right the board initially uses the standard of it wasn't necessary repeatedly in its opinion and then it comes in for reconsideration does the board kind of get told and appreciate that necessary is the wrong standard so we've got to change that we've got to apply and to them in standard is that a fair assessment of what went on here not in terms of burden of proof i'm talking about whether you applied necessary which the board repeatedly applied initially or whether the standards was just so o p m came in at the board level as for reconsideration the board level and argue that necessary was incorrect language right in the board basically agreed that is the correct language is out of the statute so the board agreed that actually the best first problem with this case is if you look at the actual position description the position they are trying to put her in and you look at the requirements ok and then going back to friars break where the court legitimate reasons is going to have been established and the board did not say that that fact finding was wrong he did so the reason that provided by the ada the board then comes in with all of these that just went off and running a whole lot of other things is the problem here is not evidence of the absence of evidence so the reason given by the park service for this reassignment was she is uniquely qualified for this position she is the only person who meets all the on that but my concern with that is firstly it's a temporal thing because we don't know that most cases but you know the government fired fifty thousand air traffic controllers it created an absolute mess in the flying styles of america and i don't recall anybody ever using a faster well my god we've created fifteen thousand vacancies by flying these people i've just never seen it used by definition any time you fire someone you could fire ten people for misconduct and you could be a hiring freeze successful employees are reassigned all the time and the most common most typical type of reassignment is in reorganization or restructuring the reduction in force by an agency to make itself more efficient sure and if this woman had accepted was for a legitimate reason right right and also in every case where somebody is reassigned doesn't want to take the reassignment and then leave is there going to be some on the scale that this is a factor that says we doesn't promote the efficiency of the service superintendent and she's only one year being reassigned even in friday were i think for other people being reassigned it wasn't just grading singled out for this and she is doing really great in the positions and they want to put in another position but there's no evidence showing that she meets the qualifications or she is uniquely qualified to use the reason provided by the park service or she's unqualified and according to their own standards the rate she doesn't meet the requirements listed here but in any the reason provided she's unique would qualify which is something someone above minimum would qualify so if it doesn't make sense and it's hard to see how it's most efficient use of the service to pick someone who is doing so well in their current position take them out of that creative a put him in another position where we don't know how to perform based on the record which doesn't show she's qualified that's so that's what the i think the board trench are new to this case is if you look at the the case for the good example fry was not performing well in his position and so the organization that he had a part of trying to make itself more efficient by going to people can see the the board i think it was in the five thirteen decision uses the term this this  it was and mr passman might have more on this but there was a management review that happened right before this position was created the park service for whatever reason did not put that in the regs so they mean that would be that could have been a the board must review the legitimacy of any supervisor in order for sustaining discipline based upon the failure to obey the order it is necessary for the board to review the rationale for the geographic reassignment here to determine whether why isn't that sufficient to establish the genesis it isn't because for example in these kind of the situations when a new position is created it's required that somebody from h r review the employee to determine whether she m these individuals well we didn't because there is you know put on any h r witnesses only pratap an individual who was from another agency who was not involved in the process of qualifying mr miller and only came out during discovery how the agency  engineer for mr miller and when classifier said the job would even really classify as a twelve they raised a physician and so would years thirty by putting in all these very tough requirements that mr miller couldn't me sudden she brought him past he did she was aware of but one question is that i had just there's reference in here and i what is exactly the mobility agreement and how does it work and what is the significance in this case the briefs on both training and experience and there's no such a guitar example here but i got mr miller was right in that a notice on april twenty seventh two thousand and ten and told him we're going to offer you a voluntary reassignment to anchorage is a long discussing here today that she was not qualified for the position ok thank you record that apparently at least argument points in the opposite direction and the only fact finding that's been done has not been overturned by the board or explained to the vet any contrary finding should be found and that's the findings of the administrative judge that the agency did have legitimate management reasons for making the reassignment there's been much made of the idea that the agency was saying what she's uniquely qualified as was mentioned that didn't mean that she was the only person in the entire world who could do this and perhaps it was hyperbole on the on the part of the manager but what they were say stating and their testimony reveals this is that among the people within the periodic management assessment that says that look at all of the parks throughout the alaska region and basically said how are we doing where can we do better and review made some suggested improvements way the management review had been conducted what in the in the decision sustaining her removal by buying this massive show she said she mentions the management review she makes reference  isn't there really is no evidence that the agency in advance of creating this position and deciding that ms miller among the current and cory's would be best to fill it had any other designs on taking any personnel action against miss miller they recognized that as i mentioned she might not have been perfect as a superintendent but one of her obvious manifested skill sets was that she was good at developing relations particularly with the local community and the tribes and that's what this position was going to be all about and it but it was going to be bigger than just etc it was going to be throughout the alaska region and it was created as a pilot as a result of policy directive from the secretary and s and so there really is no evidence that it wasn't in a good faith legitimate reason to make the reassignment there is no evidence that there was a pretext to make reassignment and the long standing rule is that employees can be expected to the director letters said and i think this is fairly standard language when they met and when management directs a reassignment they will also inform the employee that a refusal to accept the with all due respect i appreciate the idea that management wants to ask first to see if somebody is willing to go voluntarily but if they really need the personal once a person believes that they have a good reason that this person will help the mission of the agency in this new assignment management is prepared to direct the reassignment they'll ask first if they refuse they will direct the reassignment which no one questions they have the ability to do no one questions that i can tell you that it is it's not in the record i would presume they'd say they other aspects of the record indicated that they were trying to expeditiously fill this position perhaps they had been getting pressure from above that they'd already spent more than a year on it they needed to get it filled but i honestly i don't know and i don't think there's anything in the record as to why when the time came they were moving so quickly